Daily Archives: July 2, 2021

Penn scientists correct genetic blindness with single injection into the eye – Big Think

Posted: July 2, 2021 at 8:14 pm

The same journalist and I have been verifying this opinion for over eight years now indeed, observing the development of a juvenile representative of the Homo sapiens species is a continuous, fascinating adventure.

It's a fact that evolutionary success is determined not by the length of adult individuals' lives, but by the number of their offspring that carry their genes into subsequent generations. More precisely, it's not about the number of one's children, but one's grandchildren: the children need to survive and pass on their genes. Of course, in order to have children, one must beget them, or at least somehow initiate the development of the egg, as it happens in parthenogenetic species, where females don't bother with guys at all, or only rarely. But I've already written before about various original methods of completing that first stage, so let's focus on what happens later.

Ecology differentiates two strategies of reproduction: 'r-selection' and 'K-selection'. The symbols are taken from a complicated formula illustrating population dynamics developed in 1838, which systematized our thinking about animal success for the rest of the 19th century and for almost all of the 20th century. It was developed by Pierre Franois Verhulst (18041849), and its simplified version is as follows: dN/dt = rN (1 N/K), where N is the population, r is its maximum growth rate, K is the carrying capacity of the local environment, and dN/dt is the rate of change of the population with time. According to this model, species that engage in r-selection produce as much offspring as quickly as possible, while K-selection involves an investment in quality rather than quantity. So we either have masses of children that we're not too worried about, hoping that things will work out and some of them will survive; or we have few, but we invest a lot in them and we try to make sure that they do as well as possible. Of course, as is often the case, in nature it's more of a continuum, where not only different species, but also different individuals from the same species, function somewhere between these extremes and we can only say that one is 'more r' or 'more K'.

For example, guppies small fish from South and Central America, popular with both aquarists and evolutionary biologists are very flexible in this regard. Researchers have been studying them for years in Trinidadian streams and it turns out that their strategies vary widely depending on the presence of predators, sometimes within the space of a few metres. In the upper reaches of the streams, where rocks make it impossible for bigger fish to get through, guppies have fewer, but larger and better-fed young, so they're 'more K', and their offspring grow up peacefully in calm waters. Below the rocks (sometimes literally one boulder is all it takes) they choose a strategy more closely aligned with r-selection their offspring are smaller, but they're much more numerous, because in the face of the constant risk of being eaten it makes sense to have as many as possible. So, although science is currently leaving this classic model behind, speaking more often about the diversity of survival strategies, my opinion is that with some reservations these two letters make it easier for us to describe a complex reality.

Still, no matter how much offspring there is to be, they need to be brought into the world somehow. Here, there are fundamentally two methods. You can lay an egg with a yolk (the evolutionary equivalent of a packed lunch) from which after a while, with more or less assistance from the parents, your kids will hatch; or you can nourish the offspring within your own body and give birth to them ready-made. It's an easy guess that apart from oviparity and viviparity there's also a third option: ovoviviparity. It refers to embryos that develop in eggs that hatch while still in the mother's body, which the young leave later.

Let's start ab ovo. The egg must be encased in something, so that it can protect the embryos at least a little from outside danger. Species that lay their eggs in water usually don't have to worry that they'll dry out, so for them a jelly-like membrane is usually enough; it means the contents of the egg stay where they should, instead of sloshing around. But if you live on land, you must like many insects and arachnids, and all reptiles and birds, as well as mammals such as the platypus and the echidna invest in something more watertight. The hard shell of a bird's egg also protects it from at least some predators. For example, the shell of an ostrich egg incidentally, the largest single cell in the world is so thick and strong that even lions have trouble breaking it.

Photo by Anna Sjblom on Unsplash

Still, whatever the eggs are encased in, they all have a better chance of surviving if someone looks after them. We automatically associate incubating eggs with birds; indeed, they either take care of their clutch themselves or, like cuckoos, frame someone else into doing it. But other animals also provide many examples of parental dedication. Female octopuses spend the last weeks of their lives defending their eggs, tucked away in some underwater nook, oxygenating them and cleansing away algae and parasites. This work uses up all the time and energy they've got left after the enormous effort of producing and laying the eggs in a suitable place. When the young octopuses finally hatch, their mum is either already dead or about to die. Although this strategy seems to suit cephalopods, we owe our current position in the world to it I suspect that if a mother octopus could pass her knowledge and experience to her offspring, Earth would be a very different place. As it is, despite their astonishing intelligence, each octopus must re-invent the wheel. Considering that their intelligence precedes ours by a few million years, I really think that if they could accumulate experience from generation to generation, I'd be writing this text for an eight-legged editor-in-chief, had she even been interested in the opinion of an organism as inferior as a human.

Although the sacrifice of the cephalopod mum is impressive, some invertebrates go further. Perhaps the most extreme form of parental devotion is matriphagy, or the consumption of the mother by her newly-hatched offspring. This phenomenon can be observed in some arachnid species: after laying the eggs, the female starts to dissolve the tissues of her body with digestive juices, so that when the adorable spider babies hatch, their mother is nothing more than an eight-legged chitin container filled with nutritious juice. The tots just need to bite through her skin and they can lap it up. Among insects, apart from the obvious examples of the Hymenoptera (i.e. ants, wasps and bees) and termites, earwigs provide another example of exemplary parental care. The Japanese species Anechura harmandi is the only insect known to science in which the mother also dies before the young hatch, to become their first meal. Even the common earwig is no stranger to motherly sacrifice. The females of these rather unpopular fearless vanquishers of aphids and silverfish frequently gather into groups to care for their clutches together, and then to feed their young and bravely defend them from predators.

Laying eggs has its obvious advantages. If they require no care, you can not only produce many, but also expect that they will spread around the world on their own. But carrying their offspring in their own bodies makes it easier for parents to provide suitable conditions for development. No wonder, then, that some animals (including many species of shark and the common European adder) have chosen the compromise of ovoviviparity during their evolution. In others like in the viviparous lizard one or the other method of reproduction dominates depending on environmental conditions. In Southern Europe these lizards, like most lizard species, lay eggs. But in cooler areas the females give birth to their young. Thanks to this flexible strategy, they can live in environments that are inaccessible to many other species, like high up in the mountains and the far north of Europe. It is the only reptile on our continent that also lives beyond the polar circle, although vipers the northernmost of our snakes reach almost as far north as that.

Another interesting issue is laying your eggs in someone else's body, although I'm not sure if that still counts as ovoviviparity. The most banal and drastic example are the many species of parasitoids animals that exploit their host completely, living in it for a time, before killing it like the Alien from the famous science fiction film. Many wasps paralyse their victim (usually a caterpillar or a spider) and lay their eggs in that living larder; the larvae will later gradually bite their way out of it. But laying eggs into the body of one's own partner is even more interesting.

This is what happens in the Hippocampus, or the slowly moving fish known as seahorses. After their mating dance and successful consummation of the relationship, the female lays the fertilized eggs into a special pouch on the male's front. From then on, they will be in his care, so that one day he can give birth to hundreds of miniature seahorses, which he will still take care of after the birth.

But since early childhood, I have been fascinated by another organism. The common Suriname toad a tailless amphibian (i.e. frog-adjacent) from the northern part of South America with the charming Latin name Pipa pipa appeared in my life in the form of an illustration in an ancient animal atlas, and it immediately hopped onto the pedestal as one of my favourite species of all times. Just after the female lays the eggs, the male gathers them up and distributes them evenly on her sticky back. Her skin grows spongy, and the eggs sink into it and develop relatively safely; after a time, fully formed little frogs leave her back. It is undoubtedly one of the most interesting births in nature.

If the young isn't separated from its mother's organism by the egg shell, she usually nourishes it via a placenta. This is, of course, the case in a substantial majority of mammals, but not exclusively. The placenta can also be found in some sharks and lizards, but true viviparity has evolved independently at least 150 times and occurs in many species of fish, amphibians, insects and arachnids. One of these unexpectedly caring parents is the infamous tsetse fly: the female flies around for nine months with a single, increasingly large larva in her abdomen, feeding it with a nutritious milky liquid. A more macabre version of feeding one's young can be observed in some Gymnophiona from the family of common caecilians. Their embryos have special teeth that allow them to feed on the epithelium of the mother's oviduct. After they're born, young common caecilians switch over to the female's outer epithelium and literally flay her, although fortunately she regenerates quickly.

After leaving the mother's body one way or another many young animals still need constant care. Because the physical connection is no longer there, persuading the parents to continue to provide food and shelter requires initiating a psychological bond. The parents must like their newly born or hatched children to keep taking care of them.

And so evolution has equipped young animals with a whole arsenal of signals that leave their carers helpless. In birds, it's frequently a lurid colouration of the inside of the beak and the area around it, visible when it is fully open. Adult birds find this irresistible and stuff food down the open, begging mouth, even if it doesn't belong to their children but, for example, to a fish taking advantage of the situation. It is due to our own primitive instincts that most of us also feel tenderness and an urgent need to take care of young animals (or ones that look young). What's more, the recipients of that care don't even need to be cute, pretty bunnies I still remember how touched I was when, as a student, I discovered a wryneck nest in one of the nest boxes I was checking. The chicks of this woodpecker, with their thin, twisty necks and flat heads, look like mould-infested hallucinogenic mushrooms and they're certainly not pretty, but it works. Their relatively big eyes and squeaky sounds are all it takes. Of course, if the animal meets our criteria of beauty, the effect is even stronger. Cats blatantly exploit this the charm of their small faces, large eyes and the meowing that emulates the voice of a human baby turns out to be so strong that even my geologist friend is unable to resist them. Although due to his profession he is used to communing with nature through the means of a hammer, he can't stop himself and constantly regales everyone with photos of his feline charges on social media.

There's no doubt, however, that in animals such as birds and mammals it's not only the case of a simple reflex. For some time now, researchers have been claiming more and more boldly that other animals also experience feelings and emotions, like fear, anger, boredom and love. And love for one's offspring is probably the easiest to observe. It is the simplest explanation for such dramatic examples as the behaviour of a killer whale called Tahlequah who, two years ago, carried the body of her dead child with her for 17 days. Parental love can also be the explanation because there is no other for more prosaic and happy examples of behaviour, such as the fact that I'm about to walk my daughter to school, even though I've spent all night writing this text.

Translated from the Polish by Marta Dziurosz.

Reprinted with permission of Przekrj. Read the original article.

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Penn scientists correct genetic blindness with single injection into the eye - Big Think

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Pennsylvania court was right to overturn Cosbys conviction – Los Angeles Times

Posted: at 8:13 pm

The Pennsylvania Supreme Courts decision reversing Bill Cosbys conviction reminds us that even those who commit despicable crimes are protected by the Constitution. The Pennsylvania courts ruling is disturbing in allowing Cosby to go free notwithstanding his sexual assault convictions, but it is correct in applying a crucial constitutional right: the privilege against self-incrimination found in the 5th Amendment.

In 2018, Cosby was sentenced to three to 10 years in a state prison for drugging and sexually assaulting Andrea Constand at his home in 2004. This is one of a number of instances in which Cosby was accused of drugging and raping women over many years. The evidence against Cosby included statements that he had made in depositions in civil cases against him.

The constitutional problem is that Cosby gave those depositions based on an assurance, in 2005, from then-Dist. Atty. Bruce Castor that he would not be criminally prosecuted for sexual assault.

When a deposition is taken in a civil case, the right against self-incrimination allows a witness to refuse to answer any questions that might lead to criminal liability. But if there is no possibility of a criminal prosecution, then an individual cannot invoke the 5th Amendment and must answer questions.

For example, the 5th Amendment privilege does not apply if a witness is granted immunity from prosecution. In that kind of situation, the statements cannot lead to criminal liability, so there is no right to refuse to answer questions.

The crucial question in the Cosby case is whether he had been promised that he would not be prosecuted before answering questions at the civil depositions. There need not be a formal immunity agreement or a promise in writing. If a prosecutor causes a person to reasonably believe that there is no chance of a criminal prosecution, any statements that are subsequently obtained must be excluded from being used as evidence.

This is essential to protecting the fundamental right of not having to incriminate oneself. It would also be unfair to use statements gained in reliance on a promise not to prosecute.

The Pennsylvania Supreme Court found that the evidence was clear that Dist. Atty. Castor assured Cosby that he would not be criminally prosecuted. As the court noted, that is why Cosby did not invoke his 5th Amendment privilege against self-incrimination when his depositions were taken. The court explained: Cosby did not invoke the Fifth Amendment before he incriminated himself because he was operating under the reasonable belief that D.A. Castors decision not to prosecute him meant that the potential exposure to criminal punishment no longer exist[ed].

In coming to this conclusion, the court relied on a basic and well-established principle of law. As the justices stated: [W]hen a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.

Not a word in the courts decision exonerates Cosby of his crimes. The court did not question his guilt in any way. But the Constitution must be followed even when it means that guilty people go free.

It is easy in hindsight to question Castors decision in 2005 not to prosecute Cosby because of what he considered evidentiary difficulties in obtaining a conviction. Of course, had Castor not made that decision, Cosby would not have had to answer questions at his deposition, and perhaps without that testimony he would not have been convicted in his 2018 trial.

Perhaps, because of the #MeToo movement and the revelations of sexual assaults by prominent figures, especially in the entertainment industry, a prosecutor would come to a very different assessment today. But the unique facts of the Cosby case do not in any way reduce the ability of police and prosecutors to seek justice and accountability when famous people are accused of rape.

In this case, the Pennsylvania Supreme Court had to determine only whether a promise had been made to Cosby that he would not be criminally prosecuted a promise upon which he relied. Once the court found that there had been such a promise, it had no choice but to enforce the Constitution and overturn the conviction.

There is a cost to having a Constitution that protects the guilty as well as the innocent. But it is the only way that all of our rights can be secured from abuses by the government.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. He is the author of a forthcoming book, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

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Bruce Castor, before and after Cosby: Trump, insurrection, and Katheleen Kane – On top of Philly news – Billy Penn

Posted: at 8:13 pm

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The primary reason Bill Cosby, a man convicted of sexual assault, is sitting at home right now instead of serving a 3 to 10 year sentence is because of a deal offered by a man who called himself the sovereign of Montgomery County.

Thats former Montco District Attorney Bruce Castor, and the Cosby release marks the second time his work has helped a high-profile American escape jail time in the past year.

The first was former President Donald Trump, whom Castor defended during the second impeachment trial.

Castor, a 59-year-old Abington native who got his law degree from Washington and Lee University, has also served on the Montgomery County Board of Commissioners and was solicitor general under former Pa. Attorney General Kathleen Kane. When Kane was convicted of her own perjury charges, Castor worked as acting attorney general for two weeks.

Over the course of a few decades, he has repeatedly accused opponents of corruption, while making a name for himself defending famous people against questionable charges like sexual misconduct or inciting an insurrection.

Here are some notable moments from Castors career.

When Castor ran for Pennsylvania Attorney General in the 2004 Republican primary, the race quickly got ugly.

Castor failed to secure an endorsement from the GOPs southeastern chapter a major loss since thats the region he lives in. He went on the attack, accusing opponent Tom Corbett of backroom deals with committeeman Bob Asher, who was convicted of perjury, racketeering, conspiracy and bribery charges in the 80s.

In return, Corbett questioned why Castor received more than $600k in contributions from retired businessman and President Reagan cabinet member Drew Lewis, suggesting there might be some kind of quid pro quo.

Turns out just three years before accepting the campaign cash, Castor did not seek jail time in a DUI charge against Lewis even though Lewis blood alcohol content was three times the legal limit.

Ultimately, Castors strategy was not successful, and he lost to Corbett.

In 2005, as Montgomery County DA, Castor struck a deal with Cosby that he said was in the name of justice.

Castor basically handed the comedian a get out of jail free card. Saying there was insufficient credible and admissible evidence to prosecute Cosby, Castor promised his lawyer Walter M. Phillips Jr. that he would not press criminal charges.

Castor called himself the sovereign of Montgomery County saying his decision to grant effective immunity would last for all time.

The former DA has since claimed that he did that to motivate Cosby not to plead the Fifth Amendment in the ongoing civil deposition process. That way, Castor said, it was more likely Cosby would tell the truth in civil court, thereby giving accuser Andrea Constand a better chance of prevailing.

My choices were to leave the case open and hope it got better or definitively close the case and allow the civil court to provide redress to Ms. Constand, Castor testified in Cosbys trial. I did not think there was any possibility this case would ever get better.

Constand sued Castor for defamation and he sued her back, accusing her of trying to ruin his political career.

Memphis Grizzlies guard Marko Jaric was accused of sexual assault by a Philadelphia woman in 2009, over an something that happened the team was in town to play the 76ers.

Whod the ball player hire to defend him? You guessed it.

Jaric retained Castor as counsel, and the Philadelphia District Attorneys Office eventually ultimately decided not to file charges.

Persons in Markos position are often the target of malicious statements and it is not unusual for the police to be asked to investigate, Castor said at the time. However, these allegations were proved to be completely false, and while Marko is extremely unsettled by these accusations, he is happy that the law enforcement authorities have cleared him of any criminal conduct and the issue can now be put to rest.

Castor won a seat on the Montgomery County Board of Commissioners in 2007. Even though Castor was in the political majority, there was plenty of drama among the boards members.

His colleagues, James Matthews and Joseph Hoeffel, formed an alliance against Castor repeatedly shutting him out of county deals. The newly elected Castor responded by calling the two of them corrupt, and suggesting they were mismanaging county finances and hiring unqualified people.

Matthews was later charged with perjury, but Hoeffel was never charged with any criminal wrongdoing.

Former Pa. Attorney General Kathleen Kane, who was convicted of perjury for leaking grand jury information and then lying about it, arranged a meeting with Castor in March 2016.

He suspected she would ask him to defend her in her perjury case but she didnt. Instead, Kane hand-picked Castor for a new position she was calling solicitor general. Since she was facing charges, her law license was temporarily suspended, and she wanted Castor to come on board and make legal decisions for the state in her absence.

When Kane was convicted, Castor became acting attorney general.

Castor was apparently thrilled to finally get the job he didnt win 12 years earlier: I like effectively being the attorney general without having to worry about the politics end of it. Ive pretty much trained my whole life to do a job like this.

He held the position for two weeks before being replaced by Allegheny County judge Bruce Beemer.

With about a week until his second impeachment trial began, former President Trump selected Castor and defense attorney David Schoen as his legal team.

That didnt leave Castor much time to prepare and it showed.

The former Pennsylvania official spoke first, and delivered what the New York Times called a rambling, almost somnambulant defense for almost an hour. (Somnambulant means resembling or like a sleepwalker. Burn.) Sources close to Trump said the president was furious with Castors performance, and others were quick to criticize him.

There is no argument, said attorney Alan Dershowitz, a member of Trumps defense team during the first impeachment trial, said on the conservative cable news network Newsmax. I have no idea what hes doing. I have no idea why hes saying what hes saying.

I thought I knew where it was going, Republican Senator Lindsey Graham told reporters that day, and I really didnt know where it was going.

An impeachment brief written by Trumps defense team, including Castor, defended the former president, but threw the participants in the January 6 insurrection under the bus saying they brought unprecedented havoc, mayhem and death to the Capitol.

But then Castor ended up defending some of the same insurrectionists.

Kristina Malimon, 28, and her mother Yevgeniya, 54, were arrested outside the Capitol building on Jan. 6 and charged with unlawful entry of public property. Last year, Malimon organized a boat parade in Oregon to support the former president which ended up sinking another boat in its path.

Last month, they picked Castor to represent them.

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Bruce Castor, before and after Cosby: Trump, insurrection, and Katheleen Kane - On top of Philly news - Billy Penn

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Where’s Lucy? Sham teen marriage and felony charges featured in case of missing St. Charles County girl – KSDK.com

Posted: at 8:13 pm

Lucy's mother has just weeks to reunite with her missing daughter. Despite criminal charges, the court can't force Lucy's father to reveal where she's being hidden.

ST. CHARLES COUNTY, Mo. Its safe to say that when Frontenac native Lucy Peterson got married, it wasnt the wedding her mother Kathy dreamed of for her daughter.

Teena Kilo, Lucys great aunt, remembers her reaction when she found out. Married? What are you talking about, married? She's 17. How, how is this possible? Who can allow this? she said.

It was the latest twist in a bitter multiyear custody battle between Lucys parents, Kathy Kilo Peterson and Steven Peterson.

Kathy had sole legal custody of Lucy in August 2020 when Steven took Lucy to Wyoming. There, Lucy married a 30-year-old man as a minor. Now, Steven has been arrested and Lucy is considered missing. Its been a dramatic year for members of Lucys family, who are asking for the publics help in finding her.

Somebody has to do something here, Kathy told the I-Team.

A fraudulent marriage

The man Lucy married in Wyoming is the son of one of Stevens friends, a musician from Tennessee who Lucy admitted to the court she barely knows.

In January 2021, the judge in the Petersons family court case wrote, In her deposition, Lucy was unable to recall when she first met [her husband] or how many times throughout the years she actually saw him in person Lucy was unable to provide her husbands cellphone number, email address, mailing address, or the name of the band he plays indid not have any future plans with [him], does not live with him (or have any plans to live with him), and does not plan to have a family with him.

The judge added, [Steven] has shown he is willing to move his daughter out of state, pawn her off to marry a man she barely knows, and withdraw her from school, all in an effort to self-medicate his old wounds from his divorce to [Kathy].

I was shocked, but somehow not surprised that he would pull something like this, said Teena Kilo. To emancipate her from the Missouri court. I mean, this is so awful. How can you get any worse than that?

I don't know how to even express what that was like, said Kathy. Lucy married a 30-year-old man in Wyoming. And that she's now magically an adult. So mom has no parental rights.

That was the case until the court in Wyoming annulled the marriage, in February 2021.

The limits of family court's reach

Despite having sole legal custody and being awarded sole physical custody in January, Kathy hasnt seen her daughter for almost a year.

Kathy said this all began with a violent incident in 2005 that ended the Petersons marriage.

Steve tried to kill me and held us hostage in our home in Winghaven, she said. Lucy was just 2 years old.

Steven was convicted and sentenced to probation in 2008. The case was eventually expunged.

The custody agreement they entered when they divorced fell apart in 2017. Court records show Steven Peterson has been judged in contempt of court orders at least twice. They also show that Steven Peterson had booked 42 trips for Lucy in a two-year span without informing the court, eventually taking her out of school at Mary Institute and Saint Louis Country Day School and refusing to return Lucy to Kathys custody when the court required it.

There were no consequences. Threat of jail time, threat of this, threat of that, but not even a slap on the wrist. She's completely isolated. She missed her entire junior year here, said Kathy.

In January, a court-appointed therapist testified Lucy was the victim of psychological abuse by her father. The judge ordered Steven to get counseling and stay away from Lucy for at least 90 days. The family court couldnt do anything to enforce their own rulings or bring Lucy back to court.

I have a worthless piece of paper that says Kathy has sole legal and physical custody of my daughter, who's missing, Kathy said.

Eventually, it became a matter for criminal courts to enforce.

The family court is uniquely situated, that they can order some of these things. But in terms of actually enforcing that, their hands are somewhat tied, said St. Charles County prosecutor Tim Lohmar.

"The worst of the worst"

In April, a felony warrant was issued for Steven Petersons arrest.

In a case like this that gets filed, it's the worst of the worst in terms of parental alienation or in some cases brainwashing, manipulation, said Lohmar.

Steven Peterson is charged with interfering with custody. Lucys whereabouts are still unknown. Lohmar said the investigators havent been able to locate her yet.

We asked the court to impose a condition on his bond, that he produce the whereabouts of the victim, the child in this case. The court denied that, said Lohmar. Forcing him to do something like this would be a violation of his Fifth Amendment rights.

Essentially, the court said that if Steven Peterson identified Lucys location, that would be proof that he committed the crime hes charged with. For now, hes out on bond with a GPS monitor.

The I-Team repeatedly attempted to contact Steven Peterson, his family members, his legal representatives, the man who married Lucy, that mans relatives and even Lucy herself by phone, in person and by email. They have not responded to 5 On Your Sides request for interview or comment.

Lucys 18th birthday is just weeks away. At that point, the court can no longer tell her what to do. Kathy and her family hope they can find Lucy before shes legally lost to them forever. Kathy has been literally counting the days.

[In] three and a half years, out of 1,322 days, I've seen her 28 times, said Kathy. I'll never give up. I'll never give up.

Maybe one day, Lucy will just walk back in and say, Here I am. Will you take me back? Teena Kilo said. Of course we will.

Anyone who has information about Lucy's whereabouts is encouraged to contact the National Center for Missing and Exploited Children at 1-800-843-5678 or Frontenac Police Department at 314-737-4600

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A lawyer for Ghislaine Maxwell says she should be set free like Bill Cosby was, but legal experts say that’s highly unlikely – Yahoo News

Posted: at 8:13 pm

Bill Cosby was unexpectedly freed from prison on June 30. Ghislaine Maxwell is hoping to use the same strategy in her case, her lawyer said. Gilbert Carrasquillo/Getty Images; Sylvain Gaboury/Patrick McMullan via Getty Images

Bill Cosby was freed from prison on June 30 due to a technicality known as a non-prosecution agreement.

A lawyer for Jeffrey Epstein associate Ghislaine Maxwell says she should benefit from the same quirk.

Legal experts tell Insider it's unlikely the Epstein agreement would protect Maxwell in New York, where she's charged.

Visit Insider's homepage for more stories.

When the comedian Bill Cosby was unexpectedly freed from prison Wednesday after a state Supreme Court ruling, the news gave a much-needed boost to another high-profile criminal defendant.

A lawyer for Ghislaine Maxwell, a longtime associate of the deceased financier Jeffrey Epstein, argued in a New York Daily News op-ed that she should be free from prosecution due to the same procedural issue that overturned Cosby's sexual assault conviction.

Both Cosby and Epstein benefited from an unusual deal known as a non-prosecution agreement - essentially, prosecutors vowed not to press criminal charges in exchange for other forms of cooperation. The Pennsyvlania Supreme Court overturned Cosby's conviction because he was criminally charged after he agreed to testify in a civil case, waiving his Fifth Amendment right against self-incrimination.

In 2007, Epstein had struck a deal with federal prosecutors in Florida to plead guilty to state charges of soliciting prostitution. Maxwell's lawyer, David Oscar Markus, argued in the op-ed that his client, who now faces federal sex trafficking charges, is covered by the broad non-prosecution agreement that protected Epstein.

"When Epstein agreed to plead guilty and go to state prison, the United States agreed not to prosecute him or his alleged co-conspirators," Markus wrote. "This is in black and white: 'The United States ... will not institute any criminal charges against any potential co-conspirators of Epstein.'"

Legal experts told Insider Markus' argument won't hold up in court. Epstein's 2007 non-prosecution agreement was forged by federal prosecutors in Florida, but Maxwell is charged in an entirely different jurisdiction, the Southern District of New York.

Story continues

"The success of these arguments depend on what the deal says," said Paul Cassell, a former federal judge and current law professor at the University of Utah. "It's a standard feature of American criminal justice - prosecutors can extend immunity only within the territory they have jurisdiction over."

Markus argued in the op-ed that the jurisdictional issues make "no sense," since all federal prosecutors represent the same entity.

"We have one federal government, and the agreement says clearly that the United States would not prosecute Maxwell," he wrote.

Laurie Levenson, a Loyola Law School professor, said that type of logic was likely too big of a stretch for an appeals court to accept.

She said non-prosecution agreements are so rare - typically used only in corporate crime cases - that judges will be unlikely to look favorably on them in violent or sex crimes cases going forward.

"I don't think courts are going to be likely to do these expansively," Levinson said. "Given the pushback on these agreements in the first place, I think they'll be narrowly construed."

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A lawyer for Ghislaine Maxwell says she should be set free like Bill Cosby was, but legal experts say that's highly unlikely - Yahoo News

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EXPLAINER: Why Bill Cosbys conviction was overturned – WKRG News 5

Posted: at 8:13 pm

PHILADELPHIA (AP) Bill Cosbys sexual assault conviction was thrown out Wednesday by Pennsylvanias highest court in a ruling that swiftly freed the actor from prison more than three years after he was found guilty of drugging and molesting Temple University employee Andrea Constand at his suburban Philadelphia mansion.

Cosby, 83, was the first celebrity tried and convicted in the #MeToo era, and his conviction was seen as a turning point in the movement to hold powerful men accountable for sexual misconduct.

Heres a look at the case against Cosby and the courts decision:

WHY DID THE COURT TOSS HIS CONVICTION?

The split court found that Cosby was unfairly prosecuted because the previous district attorney had promised the comedian once known as Americas Dad that he wouldnt be charged over Constands accusations. Cosby was charged by another prosecutor who claimed he wasnt bound by that agreement.

The court said thats not the case. The justices found that Cosby relied on that promise when he agreed to testify without invoking his Fifth Amendment right against self-incrimination in a lawsuit brought against him by Constand.

The court concluded that prosecutor who later brought the charges was obligated to stick to the nonprosecution agreement, so the conviction cannot stand. The justices wrote that denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade.

WHATS THE DEAL WITH THE NONPROSECUTION AGREEMENT?

The promise not to prosecute Cosby was made in 2005 by Bruce Castor, who was then the top prosecutor for Montgomery County. Castor was also on the legal team that defended former President Donald Trump during his historic second impeachment trial over the Jan. 6 insurrection at the U.S. Capitol by his supporters.

During a court hearing weeks after Cosbys 2015 arrest, Castor testified that he promised Cosby he wouldnt be prosecuted in the hopes that it would persuade the actor to testify in a civil case brought by Constand and allow her to win damages. Castor acknowledged the only place the matter was put in writing was in the 2005 press release announcing his decision not to prosecute, but said his decision was meant to shield Cosby from prosecution for all time.

His successor noted, during the appeal arguments, that Castor went on to say in the press release that he could revisit the decision in the future.

Castor had said that Constands case would be difficult to prove in court because she waited a year to come forward and stayed in contact with Cosby.

The first jurors who heard the case may have agreed with him, as they could not reach a verdict in 2017. But a second jury empaneled after the #MeToo movement exploded found him guilty at his 2018 retrial. Constand settled her civil case against Cosby for more than $3 million.

Castors successor, District Attorney Kevin Steele, charged Cosby in 2015 after a federal judge, acting on a request from The Associated Press, unsealed documents from her 2005 lawsuit against Cosby, revealing his damaging testimony about sexual encounters with Constand and others. Castor has said Cosby wouldve had to have been nuts to say those things if there was any chance he couldve been prosecuted.

HOW RARE IS THIS?

Extremely rare.

Wesley Oliver, a Pennsylvania law professor who has followed Cosbys case closely over the years, said he has never heard of a high court in Pennsylvania or anywhere else grappling with a prosecutors informal promise not to prosecute.

It breaks new ground entirely, said Oliver, who teaches at Duquesne University School of Law in Pittsburgh. It sets precedent not just for Pennsylvania but probably other states.

He said the ruling should drive home to prosecutors the risks of suggesting at news conferences, in press releases or verbally in private that they will not prosecute.

They should at least add three words at this time, he said. If you add that qualifier, which wasnt done in Cosbys case, you should be good to go, Oliver said.

CAN COSBY BE TRIED AGAIN?

Its highly unlikely. The decision on Wednesday bars Cosby from being tried again over Constands complaint, finding it to be the only remedy that comports with societys reasonable expectations of its elected prosecutors and our criminal justice system.

And the accusations raised by dozens of other women, including the five who testified at his 2018 trial, often go back decades and are most likely too remote to prosecute.

Cosby turns 84 next month. However, his lawyer said he remains in good health, except for vision problems that render him legally blind.

The trial judge deemed him a sexually violent predator who could still pose a danger to women given his wealth, power and fame, and ordered that he be on a lifetime sex offender registry and check in monthly with authorities. However, the decision negates that finding.

___

Richer reported from Boston. Associated Press reporter Michael Tarm contributed to this report from Chicago.

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EXPLAINER: Why Bill Cosbys conviction was overturned - WKRG News 5

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The Courts and Healthcare Policy – July 2021 | McGuireWoods Consulting – JDSupra – JD Supra

Posted: at 8:13 pm

2020 saw the courts continuing to play an important role in health policy with several notable lawsuits related to the Affordable Care Act (ACA). Several other Trump administration policies were challenged, including Medicare payment policies, price transparency, how the Medicaid program can change and whether Medicaid beneficiaries can sue over curtailed benefits, and immigration changes affecting access to programs like Medicaid. In 2021, the courts will continue to play an important role.

Texas v. United States.In April 2018, a group of Republican-controlled states and two Texas residents argued that the entire ACA became unconstitutional when Congress eliminated the penalty for individuals who fail to obtain health insurance, known as the individual mandate. The initial ruling was that the provision was now unconstitutional. The case was then appealed. On February 14, 2019, 5th U.S. Circuit Court of Appeals permitted a coalition of 17 states to intervene in the case and defend the ACA (the state intervener-defendants). On May 13, 2020, the 5th Circuit allowed four more states to intervene in the case on appeal, bringing the total number of states defending the ACA to 21.

In Oct. 2020, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals issued a ruling stating the individual mandate was unconstitutional because it can no longer be justified as a tax since Congress set the penalty at zero. However, the panel also remanded the case to the lower court to determine what portions of the ACA are or are not severable from the individual mandate.

The coalition of Democratic attorneys general who had asked to intervene in the case then asked the U.S. Supreme Court to take up the case and not wait for the Texas court to rule on whether some or all of the ACA provisions are unconstitutional.

Update:On Feb. 10, 2021, the Department of Justice (DOJ) sent a letter to the U.S. Supreme Court that stated the new administration believes the individual mandate and its tax penalty are constitutional, and if the Court determined that they are not, the provision can be severed from the remainder of the act. With this letter, the Biden administration reversed the Trump administration position that was presented to the Court. The Trump administration had claimed that the tax provision is unconstitutional and could not be separated from the ACA, making the entire ACA unconstitutional as a result. On June 17, 2021, the Supreme Court threw out the challenge to the ACA in a 7-2 decision, citing lack of standing by the plaintiffs.

Risk Corridors.The temporary risk corridors program was one of the Affordable Care Acts (ACA) three stabilization programs, alongside the temporary reinsurance and permanent risk adjustment programs. The goal of risk corridors was to persuade risk-averse insurers to participate in the new health insurance marketplacesto offer a new product to a new population with uncertain prospects. The program did so by limiting participating plans profits and losses during the first three years of exchange operations.

In Dec. 2014, Congress passed anappropriations riderthat limited the Department of Health and Human Services (HHS) ability to make payments to cover risk corridors payments. In response to a request from Congress in Feb. 2014, the Government Accountability Office (GAO)reportedthat HHS could use CMS program management funds to make risk corridors payments. Congress included identical riders in appropriations legislation and continuing resolutions for 2016 and 2017.

By 2016, HHS owed more than $12 billion to insurers under its risk corridors formula. There are dozens of lawsuits over unpaid risk corridors payments, including a class action with at least 116 insurers.

Lower court rulings were mixed. Of the four insurers whose cases are pending before the Supreme Court, judges in the Court of Federal Claims ruled against three insurers (Land of Lincoln,Blue Cross and Blue Shield of North Carolina, andMaine Community Health Options) and for one insurer (Moda Health Plan). In June 2018, a three-judge panel of the Federal Circuitheldthat the government did not have to pay insurers the full amount owed to them in risk corridors payments.

The insurers request foren bancreview by the Federal Circuit wasdeniedin Nov. 2018. The insurers then petitioned the Supreme Court to hear their appeal in early Feb. 2019. The Supreme Courtgrantedthe request in June 2019, consolidated the three cases, and scheduled one hour for oral argument which was held in Dec. 2019.

Update:On April 27, 2020, The Supreme Court ruled 8-1 in favor of commercial health insurers stating that they are owed $12 billion in unpaid risk corridors payments from 2014-2016. The case, Maine Community Health Options v. United States is the result of three consolidated cases brought by four insurers.

Association Health Plans.In June 2018, the Department of Labor (DOL) expanded the circumstances when an aggregation of small groups could be considered a large-group health plan. These association health plans (AHP) sought to make it easier for small employers to band together and offer plans that do not comply with Affordable Care Act (ACA) consumer protections. In July 2018, 11 states and D.C. sued in federal court to block the rule in the case of New York v. U.S. Department of Labor. The District Judge ruled that the DOL had stretched the definition of employer beyond what the Employee Retirement Income Security Act (ERISA) intended.

In a March 28, 2019 decision, a federal judge struck down the rule that had relaxed restrictions on multiemployer AHPs.

On July 22, 2020, two employers brought parallel litigation in Texas, asking for a declaratory judgment that their health coverage arrangement is a single-employer self-insured group health plan, and thus exempt from most ACA rules. The employers had requested an advisory opinion from the DOL, which concluded that the arrangement did not qualify as a single-employer group health plan.

On Aug. 3, 2020, the District Court for the Southern District of New York gave its opinion in favor of New York State, ruling that the DOL too broadly defined the term healthcare worker, and exceeded its authority as a result. The Court ruled that the Labor Departments definition was not in line with what Congress intended when it enacted the Families First Coronavirus Response Act (FFCRA) and, as a result, could lead to non-clinical employees or medical practice affiliates being excluded from the FFCRA protections.

The challenge is currently pending before the Court of Appeals for the D.C. circuit court. Oral arguments began in Nov. 2020.

Update:On Jan. 28, 2021 the Department of Justice (DOJ) requested a 60-day abeyance to give the Biden Administration time to review the issues in the case and determine how to proceed.

Short-Term Plans.On Aug. 1, 2018, the Departments of Health and Human Services (HHS) and Treasury issued a final rule to expand access to short-term, limited-duration insurance coverage that do not need to comply with ACA requirements.

On July 22, 2020, a divided panel of the D.C. Circuit upheld the short-term plan rule, concluding that the governments interpretation was entitled to deference and was neither inconsistent with nor impermissible under the ACA or HIPAA. The lead plaintiff, the Association for Community Affiliated Plans, stated it would ask for en banc review by a full panel of judges on the D.C. Circuit.

Update:On Feb. 8, 2021, the D.C District Court agreed to the Department of Justices (DOJ) unopposed request to delay proceedings in order to give the Biden Administration an opportunity to review the case. The parties are to update the court again on April 9, 2021 and every 60 days thereafter.

Cost-Sharing Reductions (CSR).ACAs cost-sharing reduction program was intended to compensate insurers for setting low deductibles and copayments on the exchanges. In 2017, the Trump administration decided to stop making the CSR payments, prompting numerous lawsuits from insurers. Insurers figured out a work-around, dubbed silver-loading, that allowed the plans to mitigate the CSR losses through increased tax credits. The insurers have won various lower-court rulings, and a consolidated group of the lawsuits was on appeal at the U.S. Court of Appeals for the Federal Circuit. Oral arguments were held Jan. 9, 2020.

On Aug.14, 2020, the Court of Appeals for the Federal Circuit affirmed a lower court ruling that the federal government is liable to insurers for the loss of cost-sharing reduction (CSR) reimbursements. The court determined that the federal government could reduce the amount owed to insurers since many insurers utilized a practice called silver-loading to mitigate losses.

On Aug. 17, 2020, a three-judge panel of the Court of Appeals for the Federal Circuit issued two decisions forSanford Health Plan v. United StatesandCommunity Health Choice v. United States. The Court concluded that under Section 1402 of the ACA, insurers are entitled to unpaid cost-sharing reductions (CSRs). The Federal Circuit agreed with the lower courts that Section 1402 imposes an unambiguous obligation on the federal government to make CSR payments to insurers and that this obligation is enforceable for damages. The three-judge panel limited the amount of unpaid CSRs that insurers can recover based on premium loading.

Update:On Feb. 19, 2021, insurers Maine Community Health Options and Community Health Choice asked the Supreme Court to review the Federal Circuit decision. On Feb. 24, 2021, Common Ground Healthcare Cooperative filed its own cert petition. On June 21, 2021, the Supreme Court denied the insurers request to take up the CSR case, leaving in place the Aug. 2020 Federal Circuit decision that the insurers reimbursement for money owed could be offset by other income received from the government in the form of premium tax credits. Litigation will continue in the lower courts to determine how much the insurers can claim.

Contraceptive Mandate.The ACA exempts non-profit religious organizations from complying with the contraceptive mandate. In 2017, the Department of Health and Human Services (HHS) created new rules to give for-profits groups the ability to exempt themselves from the mandate for religious or moral reasons. As a result, several states sued the government.

On July 12, 2019, the U.S. Court of Appeals for the Third Circuit upheld a temporary injunction on the HHS rules, stating they were arbitrary, capricious, and violated the Administrative Procedure Act (APA).The Little Sisters of the Poor and the government petitioned the Supreme Court following the third Circuit decision. The Supreme Court consolidated the two petitions, and heard oral arguments on May 6, 2020.

Update:On July 8, 2020, the U.S. Supreme Court issued a 7-2 decision inLittle Sisters of the Poor v. Pennsylvania,upholding the Trump Administrations rules that allow religious and moral exemptions to the Affordable Care Acts (ACA) contraceptive mandate. The ruling reversed the Third Circuit decision. Litigation continues before the district courts in California, Pennsylvania, and the First Circuit Court of Appeals.

Nondiscrimination Provisions.On June 19, 2020, the Trump administration issued its new final rule to implement Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination based on race, color, origin, sex, age, and disability in health programs receiving federal financing. The final rule eliminated provisions specifically protecting discrimination based on gender identity and sex-stereotyping that had been issued in the ACA.

At least five lawsuits challenged the rule, which include coalitions of plaintiffs arguing that the rule should be invalidated. Each lawsuit asked the court to vacate the Trump administrations rule in its entirety and prevent HHS from implementing or enforcing its provisions. The lawsuits argued that the 2020 rule violates the Administrative Procedure Act (APA) as it is arbitrary, capricious, and contrary to law. They also argued that the rule exceeds HHSs statutory authority and violates the Fifth Amendment.

On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton Countyand found that discrimination based on gender encompasses sexual orientation and gender identity in the context of employment. Based on that decision, two federal courts have issued nationwide preliminary injunctions blocking the Trump administration from implementing parts of the final rule.

On Aug. 17, 2020 New York court blocked the implementation of provisions excluding sex stereotyping from the definition of sex discrimination. After the plaintiffs requested clarification of the preliminary injunction order, the court directed the plaintiffs to submit a list of the 2020 rules provisions other than gender discrimination that can be kept despite the Supreme Courts decision.

On Sep. 2, 2020 the D.C. Federal District Court blocked the implementation of provisions excluding gender stereotyping from the definition of sex discrimination as well as provisions incorporating a blanket religious freedom exemption from claims of sex discrimination. Several other legal challenges are pending.

Update:Lawsuits challenging the Trump administrations rule to implement Section 1557 of the Affordable Care Act (ACA) are pending. The Trump administration had appealed the decisions made by the 2nd and D.C. district courts, and the appeals as well as pending litigation in D.C. and New York are held in abeyance with status reports due on May 14, 2021.

Columbus et al. v. Trump - Take care Clause.The 2018 case of Columbus et al. v. Trump brought by a group of five cities: Columbus, Baltimore, Cincinnati, Chicago, and Philadelphia argued that the Trump administration violated the Constitution by sabotaging the ACA and went against the Constitutions requirement that the president take care that the laws be faithfully executed. In addition, the plaintiffs stated that they had to spend more money on uncompensated care for their residents as a result of the Trump administration limiting care.

In April 2020, the district court held that the lawsuit could proceed under the Administrative Procedure Act (APA) but not the Take Care Clause of the Constitution.

Update:On March 4, 2021 a federal court in Baltimore ruled that the Trump administration unlawfully undermined the Affordable Care Act (ACA) and struck down four provisions of a 2019 Trump administration rule. The provisions vacated by the federal court include requiring federal review of network adequacy, income verification, standardized options, and a medical loss ratio.

Section 1332.On Oct. 22, 2018, the Departments of Health and Human Services (HHS) and Treasury released new guidance on Section 1332 that allowed states to waive certain requirements of the ACA following approval from HHS and Treasury. The Trump administration created these state innovation waivers with the objective of enabling states to pursue alternative coverage approaches in the individual and small group markets.

On Nov. 1, 2020, the Trump administration approveda waiver request from Georgia under Section 1332 that authorized the state to establish a reinsurance program for plan year 2022 and eliminate the use of HealthCare.gov starting in 2023.

On Jan. 14, 2021, Planned Parenthood Southeast and the Feminist Womens Health Centerfiled a lawsuitin D.C.s federal district court challenging the Trump administrationsapproval of Georgias Section 1332 waiver. The lawsuit alleges that the Trump administrations 2018 guidance and approval of Georgias waiver are unlawful because these actions violate Section 1332 of the ACA and the Administrative Procedure Act (APA).

Update:On March 26, 2021, a district judge granted Georgia permission to intervene in a lawsuit filed by Planned Parenthood Southeast and the Feminist Womens Health Center that challenged the Trump Administrations approval of Georgias waiver under Section 1332 of the Affordable Care Act (ACA). The state of Georgia had submitted a motion to intervene, stating its interests were not adequately served by either party in the case.

Section 1115 of the Social Security Act gives the Secretary of Health and Human Services (HHS) the ability to approve experimental or pilot projects that are deemed likely to help promote the objectives of the Medicaid program. The Centers for Medicare and Medicaid Services (CMS) carries out a review of each proposal to determine if its objectives align with those of Medicaid. Some states have requested that Medicaid eligibility be contingent on whether an individual is working, volunteering, or in some way participating in the community.

On Dec. 4, 2020, Supreme Court granted Arkansas and Trump administration petitions for certiorari in Arkansas v. Gresham and Azar v. Gresham.

As waivers including work requirements were approved, opponents responded with lawsuits challenging those waivers. D.C. District Court Judge James Boasberg repeatedly sided with the opponents of work requirements, ordering Arkansas to suspend its work requirement program and blocking the policy from taking effect in Kentucky and New Hampshire.

Other lawsuits challenged the policy in Indiana and Michigan. Boasbergs rulings against work requirements were on appeal at the D.C. Circuit, which heard oral arguments in October 2020. The D.C. Circuit considered the case on an expedited schedule.

On July 22, 2020, the Supreme Court heardGresham v. Azar.The D.C. District Court set aside state Medicaid waivers with work requirements. That decision was affirmed by a unanimous panel of the D.C. Court of Appeals in a decision written by Judge David Sentelle. The attorney general of Arkansas and the Trump administration filed cert petitions on July 13, 2020.

A March 11, 2021 HHS Report found that a number of state Medicaid waivers correlated to coverage losses and negative health outcomes. The report states this is partly because beneficiaries do not understand the new conditions of the waivers related to work requirements, health savings accounts, premiums, and more. HHS carried out the report in response to President Bidens executive order that directed the agency to review demonstrations that could reduce Medicaid coverage.

On Feb. 12, 2021, CMS told states it does not believe that Medicaid work requirements promote Medicaid objectives. States had thirty days to provide CMS with information on why they disagreed.

The Supreme Court canceled oral arguments in the Medicaid work requirements lawsuit March 11, 2021.

Update:On April 5, 2021, the Supreme Court announced it temporarily suspended its review of the Medicaid work requirements that the Trump administration had approved for Arkansas and New Hampshire. The Biden administration had revoked Arkansass and New Hampshires Medicaid work requirement 1115 waivers on March 17, 2021. The cases are still on hold, pending another Supreme Court order.

On April 6, 2021, the Biden administration revoked Wisconsins and Michigans Medicaid work requirement waivers granted by the Trump administration, bringing the current total of states with revoked 1115 waivers to four. Unlike several other states, Michigan and Wisconsin did not defend their work requirement programs to CMS in March.

Beneficiaries right to sue.Another policy tested in the courts is the extent to which beneficiaries have a right to sue state officials to challenge state actions that curtail Medicaid benefits. The ability to bring such lawsuits in federal court has long been viewed as an important safeguard for beneficiaries, but in recent years, some courts have expressed doubt about the legal theories underlying such lawsuits.

The U.S. Supreme Court declined to weigh in on the issue in 2018. However, a lawsuit was brought to the 5th Circuit by beneficiaries challenging Texas attempt to remove abortion providers from its Medicaid program. In a Nov. 2020 decision, the 5th Circuit Court of Appeals allowed Texas to kick Planned Parenthood out of its state Medicaid Program, saying that states have a right to determine which providers are qualified.

Several Texas Planned Parenthood affiliates filed a lawsuit in Feb. 2021, stating that they had not been issued a proper notice of termination from the Medicaid program.

Update:On March 10, 2021, a state district judge ruled that Texas can remove Planned Parenthood from its Medicaid program.

In Medicare, the Centers for Medicare and Medicaid Services (CMS) took part in two controversial payment policies that the agency said would bring down costs. Hospitals claim these policies are illegal, and fighting the policies is a priority for the hospital industry in 2021.

340B cuts.One lawsuit challenges the agencys 2018 and 2019 reimbursement cuts for drugs in the 340B drug discount program. Hospitals argued that the agency did not have the authority to make those cuts, and a federal district judge agreed. Oral arguments were heard in Nov. 2019.

On July 31, 2020, the Court of Appeals for the D.C. Circuit overturned the 2018 district court decision that found the Department of Health and Human Services (HHS) exceeded its statutory authority when it reduced 2018 and 2019 Medicare payment rates by 30 percent for many of the hospitals in the 340B Drug-Pricing Program.

In Dec. 2020, the American Hospital Association, joined by four other national hospital groups and hospital pharmacists, filed afederal lawsuitagainst HHS over its failure to enforce program requirements and halt drug company actions that undermine the program, such as limiting the 340b program through contract pharmacies.

The groups were joined in the lawsuit by three 340B hospitals serving patient communities in need that have been harmed by the companies refusals to provide discounts on prescription drugs dispensed at community-based pharmacies, as required by the 340B program.

On Feb. 11, 2021, the American Hospital Association (AHA) and member hospitals filed petitions asking the Supreme Court to reverse two appeals courts decisions related to hospital payments.

Update:On Feb. 17, 2021, a federal judge from the U.S. District Court for the Northern District of California dismissed the lawsuit, stating that hospitals cannot sue individually under federal law for 340B violations. The judge stated that hospitals must use the dispute resolution process that was finalized last month.

Site neutrality.American Hospital Association et al. v. Azarchallenged CMS 2019 site-neutral policy, which cut payments for outpatient clinic visits at certain off-campus hospital facilities. Under the policy, the agency reimbursed hospitals for those visits at a rate equivalent to the cost of such services provided in doctors offices under the physician fee schedule. In Sep. 2019, a judge from the D.C. District Court said CMS lacked authority to make the cuts and vacated them. As with the 340B reimbursement cuts, the litigation did not stop CMS from going ahead with phasing in the cuts in its 2020 outpatient rule.

Update:On July 17, 2020, the Court of Appeals for the D.C. Circuit reversed the district court decision to uphold the 2019 Medicare payment rule, expanding outpatient site neutral payment policies to apply to all hospital outpatient clinic visits, including longstanding off-campus provider-based hospital departments (PBDs). The decision by the Court of Appeals allowed the Expanded Site-Neutral Policy to stand, unless reversed by the Supreme Court. On June 28, 2021, the Supreme Court announced it would not take up AHAs site-neutral cuts lawsuit. This decision allows the Department of Health and Human Services (HHS) to move forward with the reimbursement cuts included in the 2019 Outpatient Prospective Payment System rule.

CMS faces drug and hospital industry-led legal challenges to two final rules issued last year that require drug companies and hospitals to disclose more information about pricing. Both challenges are based on the First Amendment.

Drug prices.A May 2019 drug pricing rule by the U.S. Food and Drug Administration (FDA), required pharmaceutical companies to include the list prices of their drugs in television advertising, which led to the lawsuitMerck & Co. Inc. et al. v. U.S. Department of Health and Human Services et al.

Update:On June 16, 2020, a three-judge panel from the D.C. Circuit Court backed a lower court's decision that the Department of Health and Human Services (HHS) overstepped its regulatory authority by requiring pharmaceutical companies to list their drug prices in television advertising. The case is on appeal at the D.C. Circuit.

Hospital prices and transparency.CMS issued the Transparency Final Rule in Nov. 2019, which required hospitals to publish the confidential rates they negotiate with private insurers. The hospital industry sued, arguing the rule is highly burdensome and violates hospitals free speech. The district judge presiding over the case set an expedited schedule to review it.

In late June 2020, the district court upheld the Trump administrations rule to require hospitals to publicly disclose negotiated rates and prices of certain shoppable items and services. The rule was promulgated under Section 2718(e) of the Public Health Service Act, a provision of the ACA known as the medical loss ratio provision. Hospitals challenged the rule, arguing that it is capricious, arbitrary, and violates the First Amendment. The hospitals also claimed that the government exceeded its authority in issuing the rule. The American Hospital Association, the lead plaintiff, quickly appealed to the decision to the D.C. Circuit. However, on Dec. 29, 2020, the D.C. Court of Appeals upheld the district courts ruling and rejected the American Hospital Association (AHA) and other hospital groups challenge of the hospital price transparency rule.

Update:On Dec. 29, 2020, a Federal Appeals Court ruled against the American Hospital Associations (AHA) legal challenge to the Centers for Medicare and Medicaid Services (CMS) final rule requiring hospitals to disclose their private negotiated charges with health insurers. The rule went into effect Jan. 1, 2021.

Immigrants and health insurance.The Public Charge rule, issued in Aug. 2019 by DHS, made it harder for legal immigrants who received certain forms of public assistance, including Medicaid, to remain in the U.S. and become permanent residents. The proclamation required new immigrants seeking entry into the country to demonstrate that they would be able to obtain health insurance, excluding subsidized ACA plans or Medicaid.

On Aug. 5, 2020, a Fourth Circuit panel ruled 2-1 in favor of the Trump administration policy and reversed the nationwide injunction of the policy issued by a federal judge in Maryland. On Jan. 11, 2020, the U.S. Court of Appeals for the Fourth Circuit was the only federal appeals court to allow the rule to proceed.

On March 9, 2021, the Supreme Court dismissed the case.

Update:On March 9, 2021, a court order vacating the 2019 Public Charge Rule went into effect, and the Department of Homeland Security (DHS) immediately stopped applying the rule. On March 15, 2021, the Biden Administration officially removed the 2019 Public Charge rule from the Code of Federal Regulations.

Conscience rule.On May 2, 2019, the U.S. Department of Health and Human Services (HHS) and Office of Civil Rights (OCR) released a final rule that expanded the ability of medical professionals to refuse to provide care based on religious or moral objections.

The state of California and two additional states and cities sued the Trump Administration on May 21, 2019, stating that the conscience rule would encourage discrimination against women and the LGBT community.

On Nov. 6, 2019, a federal judge voided the conscience rule, stating that HHS did not have the authority to impose major portions of the rule.

Update:Multiple district court decisions related to the Provider Conscience Rule were appealed and consolidated before the 2nd and 9th Circuit Courts of Appeal. Oral arguments before the 9th Circuit were scheduled for Feb. 2021, but the court granted the governments request to hold the appeals in abeyance. A status report is due by June 1, 2021. Oral arguments scheduled for March 17, 2021 in the 2nd Circuit were also removed from the calendar after the court agreed to hold the appeals in abeyance, and status reports were filed on March 8.

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The Courts and Healthcare Policy - July 2021 | McGuireWoods Consulting - JDSupra - JD Supra

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