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Primary Care Providers Win Challenge of CMS Interpretation of Enhanced Payment Law

With the help and support of the Tennessee Medical Association, 21 Tennessee physicians of underserved communities joined together and retained Bass, Berry & Sims to file suit against the Centers for Medicare & Medicaid Services to stop improper collection efforts. Our team, led by David King, was successful in halting efforts to recoup TennCare payments that were used legitimately to expand services in communities that needed them. Read more

Tennessee Medical Association & Bass, Berry & Sims

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Healthcare Private Equity Compliance Checklist

The complex and ever-changing healthcare regulatory and enforcement environment, including increased focus on the role of private equity firms in their portfolio companies, make compliance a top priority for private equity firms investing in healthcare companies. The best way to limit your exposure as a private equity firm is to avoid a compliance misstep in the first place. Additionally, an effective and robust compliance program for your portfolio healthcare company makes it much more attractive to potential buyers and helps you avoid an unexpected and costly investigation or valuation hit down the road. Download the Healthcare Private Equity Compliance Checklist to assess whether your portfolio company's compliance program is up-to-date.

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Federal Banking Authorities Approve Nonbank Liquidation Rule and Extension for Foreign Banks on Pushout Rule

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June 10, 2013

In a busy day's work, on June 5, 2013, the FDIC and the Federal Reserve issued two new rules under Dodd-Frank impacting both domestic and foreign financial institutions.

Liquidation Rule. The FDIC’s board approved the final version of the "liquidation rule" defining which systemically important nonbank financial companies the FDIC will be responsible for liquidating if they fail. The definition focuses on companies that are "predominantly engaged in activities that are financial in nature or incidental thereto" and whose failure would be systemically risky to U.S. financial stability. A company that meets the definition will trigger the agency's authority under Title II of Dodd-Frank to act as a receiver and liquidate the company in the event of failure. The FDIC's actions mark the final rule's approval, but the rule has not yet been issued.

Under the final rule, any company that generated 85% or more of its total consolidated revenues from financial activities over the past two fiscal years will be deemed "predominantly engaged" in financial activities and potentially subject to liquidation. The definition of financial activities is fairly broad and includes, among other things, money lending, insurance activities, financial advisory services, management consulting services, serving as a principal in investment transactions, credit services, financial data processing, and provision of real estate title services. The FDIC's definition tracks closely to one adopted by the Federal Reserve in April that will be used by the Financial Stability Oversight Council to determine which nonbank financial companies will be subject to additional scrutiny under a separate provision of Dodd-Frank.

Several companies have confirmed that they have been included under this definition, notably American International Group Inc., Prudential Financial Inc. and General Electric Capital Corp.

Pushout Rule. The Federal Reserve has announced in an interim final rule that uninsured U.S. branches and agencies of foreign banks will be eligible for a two-year extension in which to implement the "pushout rule" requiring banks to remove most derivative trading from units that receive federal deposit insurance. In January 2013, the Office of the Comptroller of the Currency gave insured depository institutions an additional two years to comply with the rule. The rule includes certain exemptions for interest rate, currency, gold/silver, credit derivatives referencing investment-grade securities, and hedges.

Some critics have expressed reservations that the "pushout rule"—formally known as Section 716 of Dodd-Frank —would make the U.S. financial system more vulnerable to the kinds of systemic risk Dodd-Frank was enacted to protect against. This rule has also come under legislative attack, including a bipartisan bill introduced as recently as March to repeal much of the provision. That bill—H.R. 992, known as the Swaps Regulatory Improvement Act—is currently before the House Agriculture Committee.


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