Court Good at Keeping Mum, as Health Care Decision Looms This Week

The nine U.S. Supreme Court justices and more than three dozen other people have kept quiet for more than two months about how the high court is going to rule on the constitutionality of the Affordable Health Care Act. Unlike the Congress and the executive branch, which seem to leak information "willy-nilly," the Associated Press says, "the Supreme Court, from the chief justice down to the lowliest clerk, appears to truly value silence when it comes to upcoming court opinions, big and small. No one talks, and that's the way they like it." The decision is expected to come Thursday, when the justices plan to complete their nine-month term.

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4 Down, 5 to Go for Supreme Court

With decisions ranging from broadcast indecency to union fees and corporate fines, the U.S. Supreme Court on Thursday cleared the way for the term's biggest and likely most controversial rulings to come next week. After these four rulings, five cases remain, including health care and life without parole for juvenile murders. The court will return on Monday and may schedule an additional decision day later in the week. Learn more from the National Law Journal

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Waller Explains Texas Expansion

In an interview with the Nashville Post, Waller chairman John Tishler talks about why his firm continues to turn to Austin, Texas, for new talent and new opportunities, saying that while the new office is physically in Austin, the move is about entering the Texas market. "We have targeted a wealth of opportunities in Austin for health care regulatory work" but clients will be located across the state, he said. In picking Austin for the firm’s latest venture, Tishler said the city presents "a broader range of health care opportunities" than other Texas cities, offers access to policy makers and resources at the University of Texas School of Law, and provides close proximity to Houston and San Antonio.

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Waller to Open Austin Office

The Nashville-based law firm of Waller Lansden Dortch & Davis announced that it plans to open an office in Austin, Texas, and has hired Elizabeth Rogers, a partner and health care attorney in the Austin office of Vinson & Elkins, to manage it. The firm’s chairman said Waller was attracted to Austin because of its growing health care market. The Nashville Business Journal has more from the firm.

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Group Asks High Court to Allow Live Broadcast of Health Care Decisions

A coalition of news organizations is asking the Supreme Court to permit live broadcast coverage of the upcoming announcement of its historic health care decisions. In a letter to Chief Justice John Roberts Jr., the group wrote, "There is a strong interest nationwide in the Court’s opinion and any comments by a member of the Court that may accompany its announcement. Such access would allow the public to be informed of the Court’s ruling in a timely manner." The Court announced today it would be sitting on Monday and Thursday of next week to issue decisions, and several sittings are also expected the following week, at the end of which the Court is likely to adjourn for the summer. But the Court never lets it be known in advance which decisions will be issued on which days. The Court's current practice is to release the audio of oral arguments at the end of the week in which they occur, thereby limiting their news value. The Blog of Legal Times reports

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'Section Cup' Winners Named at TBA Convention

News from the Appellate Practice, Criminal Justice and Health Care Law Sections
Recipients of the 2012 Section Cup were announced recently at the Section Chairs Roundtable, kicking off the TBA Convention in Memphis. TBA President Danny Van Horn created the Section Cup to encourage service to section members. Over the past year, sections accumulated points for holding meetings and CLEs or providing new services to members. Sections of like size competed against each other for the honor. 

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Legal Aid Lawyer On the Job at Erlanger

Emily Lay has been Legal Aid of East Tennessee's full-time lawyer in Chattanooga's Erlanger Hospital for several months now, helping patients who may need legal assistance, such as a setting up a power of attorney, applying for social service benefits, working out child custody, writing living wills or obtaining protective orders for domestic violence victims. This is the first such health-law partnership at Erlanger, and Charlie McDaniel, pro bono project director for Legal Aid in Chattanooga, says the first hurdle to setting up the program was in persuading the hospital to bring in lawyers to the facility. Another challenge was to commit a full-time attorney, not just volunteers, to be in the hospital and available at a moment's notice. Read how Lay does her job, and what it takes for a partnership like this to work, in the Times Free Press.

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The Commerce Clause's Crucial Role in Health Care Decision

As the nation awaits the Supreme Court's decision -- expected by the end of June -- on the Affordable Care Act (ACA) and how that will affect this year's presidential election, constitutional scholars know there is much more at stake here than an individual election. Just how much is illustrated by the legal history of the Commerce Clause of the Constitution. Most scholars agree that the ACA presents a watershed, a potential breaking point with the legal framework that has undergirded our modern economy. "The expansive understanding of the Commerce Clause has been the basis of minimum wage legislation, of workplace safety legislation, of economic protections, and in fact of our civil rights laws," says Jeff Shesol, author of Supreme Power: Franklin Roosevelt vs. the Supreme Court. "The conservative legal establishment has been very open about its interest in undoing the New Deal at the constitutional level," and "this would be the first great success of the movement." National Public Radio looks at history of the Commerce Clause and how important that is in the decision on health care.

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Section Accomplishments Recognized

TBA President Danny Van Horn today recognized the work of three TBA sections by presenting them with Section Cup awards during the Section Chairs Roundtable at the TBA Annual Convention in Memphis. Over the past year, sections accumulated points for holding meetings and CLEs or providing new services to members. Sections of like size competed against each other for the honor. The TBA Appellate Practice Section was named the Section Cup recipient for smaller TBA sections, with Executive Council member Buck Lewis accepting the award on behalf of the section.

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New Drug Database Law Has Critics, Supporters

Officials say a new law that requires Tennessee's doctors to use a drug-monitoring database and pharmacists to upload prescription information more often will allow state officials to determine which doctors are prescribing the most painkillers. Bill Gibbons, commissioner of the state Department of Safety and Homeland Security, who helped craft the bill, says he hopes the changes will make doctors more aware of the number of prescriptions they write and allow them to spot patients who are "doctor-shopping" to buy pain medication for an addiction or to resell. But some critics, including doctors, say the law puts a burden on all doctors rather than targeting the few who are careless or over-prescribe. Other critics say the law doesn't go far enough. The Times-Free Press has more

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State Gets Funds for Health Care Plan While Awaiting Court Decision

Tennessee accepted an additional $4.3 million in federal funds on Wednesday to establish a state-based health insurance exchange, bringing the total the state has received to more than $9 million. However, lawmakers adjourned their session earlier this month without passing legislation to implement an exchange where consumers can shop for health insurance. The U. S. Department of Health and Human Services announced the grant Wednesday as part of $181 million awarded to six states. "No one wants to invest a lot of money in a concept when we're not sure, that come July 1, after the Supreme Court has made its decision, whether we have to deal with it or not," Sen. Bo Watson said. The Times Free Press has the story

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Legislature Wraps Up 107th Session

The 107th Tennessee General Assembly adjourned Tuesday – the earliest adjournment since 1998 – after a flurry of action in the final days. Legislation approved and sent to the governor included:

HB 2385/SB 2247, which overhauls the Tennessee Regulatory Authority. Read more from the Knoxville News Sentinel

SB 3597/HB 3576, which prohibits state colleges and private colleges receiving more than $24 million in state funds from imposing antidiscrimination policies on religious student groups. The bill, designed to address a situation at Vanderbilt University, was vetoed by Gov. Bill Haslam today. has more

HB 2868/SB 3005, which expands state racketeering laws to include criminal gangs, and imposes additional jail time and fines of up to $250,000 for gang members. The Times Free Press reports

SB 1325/HB 1379, which requires proof of citizenship to get state services. Learn more in the Memphis Daily News

SB 2580/HB 2725, which requires drug testing for some welfare recipients. The Tennessean reports

HB 3234/SB 2908, which authorizes referendums on whether Shelby County’s suburbs may form municipal school districts. The Memphis Daily News has more

The legislature did not act on a contentious gun issue that would have allowed employees to store weapons in vehicles parked on company lots and failed to pass a measure that would have allowed Tennessee to join an interstate compact challenging the federal health care law

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Tennessee to Share in Diabetes Company's Settlement

Diabetic supply firm AmMed Direct will pay an $18 million penalty to settle government claims that it wrongly billed Medicare for diabetes testing supplies and other products in a bait-and-switch scheme. The penalties, which also include a $2.8 million payment to a whistleblower in the long-running dispute, were revealed Friday by the U.S. Attorney’s Office. Most of the money -- $17.6 million -- will go to the U.S. government with the state of Tennessee getting $439,003 as part of the civil settlement. The Tennessean has the details

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Federalist Society Hosts Discussion on Health Care Law

The Memphis Lawyers' Chapter of the Federalist Society will present "An Overview of the Oral Arguments before the United States Supreme Court in the Patient Protection and Affordable Care Act Cases" with Gregory G. Katsas of Jones Day – one of the attorneys who argued the case before the high court. The event will take place tomorrow (Thursday) from 11:30 a.m. to 1 p.m. at The Madison Hotel. Cost is $25 for society members and $30 for non-members. Lunch is included. To register contact Greg Grisham at (901) 312-9413 or

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GOP Continues to Attack President Over Court Comments

President Barack Obama's remarks earlier this week about the U.S. Supreme Court's consideration of the health care law continue to generate backlash from political opponents. In a speech today, Senate Minority Leader Mitch McConnell, R-Ky., continued the GOP counteroffensive, telling the president to "back off" the court. "The President crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it. The independence of the Court must be defended," McConnell said. Read more on

Meanwhile, the Justice Department today made good on its promise to file a brief with the U.S. Court of Appeals for the 5th Circuit outlining the government's view of judicial authority to review laws enacted by Congress. The Blog of Legal Times has that story

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Health Care Forum Scheduled in Bristol

The Appalachian School of Law in Grundy, Va., and Wellmont Health System will sponsor a panel discussion on the legal challenges to the Patient Protection and Affordable Care Act on Monday. The event will be held from 6 to 8 p.m. at the Monarch Auditorium at Bristol Regional Medical Center. A reception will follow. On Tuesday, the law school will host Virginia Attorney General Ken Cuccinelli – a key figure in the case against the law – who will meet with faculty, staff and students. For more information contact Saundra Latham at the law school at or (276) 935-4349, Ext. 1240.

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Editorial: Lawmakers Must Be Ready for Health Care Decision

In an editorial, the News Sentinel says that the U.S Supreme Court’s decision about the Affordable Care Act will affect Tennesseans either way it goes and that the state legislature must be poised to act. “The Legislature has put off setting up a health care exchange, with the Republican majority betting on the law's demise,” the paper says. “But if it passes, lawmakers must act before the end of the year or allow the federal government to create one. And if the law is struck down, it must be replaced with a law that addresses the failures of the health care system that gave birth to the law in the first place.” Read the editorial

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Malpractice Bill Criticized by TAJ

Legislation permitting health care providers to gain access to the medical records of anyone filing a medical malpractice claim was considered by the House Judiciary Committee this week. The bill, HB 2979, would supersede federal HIPAA laws and allow an attorney, representing a health care provider, to access a plaintiff's medical history, including mental health and past drug or alcohol abuse treatments, according to the Murfreesboro Post. The Tennessee Association for Justice called the bill an outrageous invasion of privacy and a tool for defense attorneys to intimidate victims of medical negligence and abuse. The Post has more

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Court Wraps Up Health Care Arguments

On the third day of oral arguments on legal challenges to the 2010 Affordable Care Act, the justices first tackled the question of what would happen if they ruled that the heart of the law, the individual mandate, is unconstitutional. A second session this afternoon looked at whether states would be "coerced" by the federal government to expand their share of Medicaid costs or risk losing federal funding. Wednesday's session also gave Solicitor General Donald Verrilli a chance to regain the rhetorical offensive many said he lost on Tuesday. The questioning of his performance was so widespread that the White House issued a statement today defending him. Read more from the day at and get access to transcripts and legal analysis on SCOTUSblog

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Day 2: ACA Arguments Put Obama Lawyers on Defensive

On the second day of arguments on the constitutionality of the Affordable Care Act, U.S. Supreme Court conservative justices put the Obama administration's top lawyer on the defensive, possibly forecasting a closer-than-expected Supreme Court decision, the Blog of Legal Times says. The justices appeared split on whether the federal government can force people to buy health insurance, according to National Public Radio. The court's conservatives appeared skeptical and unmoved by the government's arguments in favor of the mandate that requires just about everyone in the U.S. to have health insurance starting in 2014.

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Supreme Court Says No to Human Gene Patents

The U.S. Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer. The Daily News has the AP story

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Health Care Case Could Define Roberts’ Legacy

U.S. Supreme Court Chief Justice John G. Roberts Jr will begin presiding over an extraordinary three days of arguments in late March that will determine the fate of President Obama’s sweeping health care law. The case will also shape, if not define, Chief Justice Roberts’ legacy. The New York Times looks at the options Roberts will be weighing. Working on the case against the president’s health care overhaul is former Solicitor General Paul D. Clement, a law school classmate of Barack Obama. Clement used to argue for the federal government's power -- until he started arguing against it. The News Sentinel tells this story.

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Long Named Assistant Commissioner

Michelle J. Long has been named assistant commissioner of health licensure and regulation for the state of Tennessee. She has been a lawyer for the Tennessee Hospital Association and executive director of the Tennessee Alcoholic Beverage Commission. Read more in the Tennessean.

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Class Action Over Denial of Autism Treatment May Proceed

The U.S. Court of Appeals for the 6th Circuit ruled today that a class action against Blue Cross Blue Shield of Michigan over the company's denial of a particular therapy for autism can move ahead.  The plaintiffs initially sued Blue Cross in 2010 for reimbursement for what is known as Applied Behavior Analysis therapy, under the Employee Retirement Income Security Act of 1974 (ERISA). They also sought a court ruling that they're entitled to future coverage for the therapy costs. The National Law Journal has the details.

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