In the recent election, the Democrats captured a majority in the House of Representatives and Representative Maxine Waters (D-Calif) is now in line to lead the House Financial Services Committee. As such, it is expected that a significant shift in legislative efforts relating to the financial services industry will occur. During the first Financial Services Committee hearing since the election, Waters announced that deregulation efforts are finished.
Former Bayada Home Health Care employees recently alleged that the company had falsely billed Medicare for patients that it had known were not "homebound". Bayada moved to dismiss the suit on the ground that each employee had signed a separation agreement releasing Bayada from "any and all claims" prior to filing the False Claims Act lawsuit. With no binding Third Circuit precedent, the district court looked for guidance among other circuits that pre-filing releases can bar False Claims Act claims.
Evidence is mounting that the Department of Justice (DOJ) is willing to pursue private equity funds in False Claims Act cases, particularly ones based on alleged violations of healthcare fraud and abuse laws. Earlier in 2018, the DOJ intervened for the first time in one such False Claims Act case against a private equity sponsor, the fund's portfolio pharmacy and two pharmacy employees.
In July 2018 the Office of the Comptroller of the Currency (OCC) announced its decision to begin accepting applications from fintech companies for special purpose national bank charters (the Fintech Charter Decision). The New York State Department of Financial Services recently filed a federal court complaint seeking to enjoin further actions by the OCC to implement the Fintech Charter Decision and related actions, arguing that such acts are lawless, ill-conceived and destabilising for financial markets.
The US District Court for the District of Columbia recently vacated CMS's 2014 final overpayment rule, applicable to the Medicare Advantage programme, granting summary judgment to UnitedHealthcare that the final rule violated the Medicare statute, was inconsistent with the Affordable Care Act and the False Claims Act and violated the Administrative Procedures Act. Because the decision vacates the overpayment rule entirely, further rulemaking may be necessary.
The Department of Justice (DOJ) and the Environmental Protection Agency's (EPA's) criminal office recently announced criminal charges against employees of an oil and gas operation for tampering with and disabling pollution controls and on-board diagnostic (OBD) systems on the company's truck fleet. The EPA and DOJ are expected to continue to shift towards mobile source enforcement, particularly regarding OBD systems.
The Office of the Comptroller of the Currency (OCC) recently announced – to much anticipation – that it will begin accepting applications from fintech companies for special purpose national bank charters (commonly referred to as 'fintech charters'). However, state banking regulators are likely to once again challenge the OCC's authority to grant fintech charters, which could create some uncertainty for early applicants.
The Agency for Toxic Substances and Disease Registry recently released a draft toxicological profile for perfluoroalkyl compounds which asserted that they may be harmful to human health at low levels. Due to their non-stick properties, perfluoroalkyl compounds have been used as non-stick coatings for cookware, as paper and cardboard surface coatings and in firefighting foam.
The White House Council on Environmental Quality recently published an advance notice of proposed rulemaking in the Federal Register, seeking comment on how best to update its implementing regulations for the National Environmental Policy Act. The Trump administration has identified the National Environmental Policy Act process as a key contributor to slowing down infrastructure projects and has floated changes to it on several occasions.
The US District Court for the Southern District of Georgia recently enjoined the Environmental Protection Agency's rule defining the term 'waters of the United States' under the Clean Water Act, which establishes the act's jurisdictional reach. The court determined that the plaintiffs were likely to succeed on the merits of their case and faced a substantial threat of irreparable injury without the preliminary injunction.
The Environmental Protection Agency recently approved Oklahoma's proposed permitting programme for the disposal of coal combustion residuals (CCR) in landfills and surface impoundments, making the state the first to have a federally approved CCR disposal programme under Subtitle D of the Resource Conservation and Recovery Act.
Farm worker groups recently sued the Environmental Protection Agency (EPA), claiming that the agency had failed to publish national training materials that provide guidance to agricultural field workers on how to best protect themselves against harmful exposure to pesticides. The suit alleges that the EPA's responsibility to develop and publish these materials was triggered by the federal Agricultural Worker Protection Standard.
The US Court of Appeals for the District of Columbia Circuit recently upheld the Environmental Protection Agency's (EPA's) 2016 amended Clean Air Act regional consistency regulations. These regulations state in relevant part that the EPA will apply decisions of the US Supreme Court or DC Circuit on Clean Air Act matters uniformly across its 10 regions.
Environmental Protection Agency (EPA) Administrator Scott Pruitt recently announced his intention to initiate the process to propose to list the fluorochemicals perfluorooctanoic acid and perfluorooctane sulfonate as hazardous substances for the purposes of some federal environmental statutes, including the Comprehensive Environmental Response, Compensation and Liability Act (or Superfund).
From July to November 2016, Delaware and Maryland respectively (and together) filed Clean Air Act 126(b) petitions to the Environmental Protection Agency (EPA) alleging that upwind states such as Pennsylvania, West Virginia, Indiana, Kentucky and Ohio were significantly contributing to their non-attainment of eight-hour ozone national ambient air quality standards. The EPA recently published its notice of proposed action denying each of these 126(b) petitions.
California is leading a challenge by 17 states and the District of Columbia claiming that the Environmental Protection Agency's (EPA's) revised position on tailpipe exhaust standards for light-duty vehicles for model years 2022 to 2025 was arbitrary and capricious. In its revised mid-term evaluation, the EPA found that new information on fuel prices and technology meant that assumptions underlying its January 2017 evaluation had been unrealistically optimistic.
The state of New York recently filed a petition with the Environmental Protection Agency (EPA) under Section 126 of the Clean Air Act, asserting that nine upwind states were interfering with New York's compliance with national ambient air quality standards for ground-level ozone. Although the Clean Air Act directs the EPA to respond to Section 126 petitions within 60 days, it allows the agency to extend its time to respond for six months.
The Sixth Circuit recently resurrected the relator's case in United States ex rel Prather v Brookdale Senior Living Communities, Inc. In a two-to-one decision, the majority held that the relator's materiality and scienter allegations sufficed under Universal Health Services, Inc v United States ex rel Escobar. The gulf between the majority and the vigorous dissent by the judge reflects persistent questions about how Escobar applies at the pleading stage.
The Environmental Protection Agency (EPA) has proposed a rule which would prohibit the use of scientific studies to support new regulations unless the studies' underlying data is publicly available for independent validation. The EPA asserts that the rule is necessary for more transparent rulemaking and to restore public confidence in how the agency regulates.
The Supreme Court will not review the Second Circuit's decision that the New York State Department of Environmental Conservation was justified in denying a Clean Water Act Section 401 certification for a proposed natural gas pipeline. Constitution Pipeline, LLC argued that states had abused their Clean Water Act certification authority to block federally approved interstate pipelines, raising national security concerns.