State Attorneys General play a significant role in shaping health care policy across the country. While the national debates over health care policy in Congress and the federal government receive significant media attention, healthcare companies, including providers, payers, manufacturers, and other healthcare entities, are wise to be tracking trends among State Attorneys General as well. Even if your company does not operate in a particular state, trends in State Attorney General enforcement priorities can spread quickly across states.
Our State Attorney General Practice at Foley Hoag is closely tracking these trends and advises a variety of healthcare clients on how to anticipate and respond to State Attorney General regulation and enforcement. Below, we outline several recent developments among State Attorneys General nationwide impacting healthcare companies, including issues related to medical billing and debt, hospital acquisitions and administration, and reproductive and gender-affirming care.
CALIFORNIA | FEBRUARY 2024
The role of private equity in the healthcare system is receiving increased attention in state capitols across the country. California Attorney General Rob Bonta recently proposed new legislation (A.B. 3129) that if passed would grant the AG oversight over private equity and hedge fund acquisitions of healthcare facilities. The AG would have the authority to grant, deny, or impose conditions on an acquisition if it is deemed to have anticompetitive efects or limits public access to healthcare. The bill would also prohibit private equity groups from entering into certain management services arrangements with physicians.
FLORIDA | MAY 2024
In the course of any Presidential administration, State Attorneys General on the other side of the aisle often serve as a legal check on the President’s priorities, challenging federal rules. As one example, this past May, Florida Attorney General Ashley Moody sued the HHS, challenging the Biden Administration’s new rule under Section 1557 of the ACA re-establishing non-discrimination protections on the basis of gender identity. AG Moody is asking the court to vacate the rule and declare that HHS cannot require covered entities to preform or refrain from categorically rejecting gender transition interventions.
INDIANA | MARCH 2024
State Attorneys General are actively involved in enforcing laws protecting data security and patient privacy. In Indiana, Attorney General Todd Rokita sued a home healthcare equipment and services provider for allegedly failing to investigate and inform consumers regarding data breaches in violation of state data security, consumer protection laws, and HIPAA.
MINNESOTA | AUGUST 2023
Last summer, Minnesota Attorney General Keith Ellison committed to a “renewed focus” on medical billing. In 2022, AG Ellison opened an investigation into an academic medical center over allegations that the healthcare facility had sued patients who qualifiedfor charity care over their medical debt. More recently, in August, AG Ellison launched an investigation against a regional health system that allegedly had denied non-emergency medical care to patients who carried medical debt.
NEW YORK | MAY 2024
In the wake of Dobbs, issues related to reproductive healthcare have been in the crosshairs of both Democratic and Republican State Attorneys General (although the two typically take opposite stands). Democratic State Attorneys General have taken steps to protect reproductive healthcare, even in states where abortion remains legal. In New York last month, Attorney General Letitia James announced a lawsuit against an anti-abortion group and 11 crisis pregnancy centers across the state for allegedly using false and misleading statements to advertise “abortion pill reversal.”
NORTH CAROLINA | DECEMBER 2023
In many states, State Attorneys General have direct oversight over non-profitsand public charities and may exercise that authority to enact various concessions- including continued oversite- when investor backed companies acquire formerly non-profi healthcare facilities. In December, North Carolina Attorney General Josh Stein sued HCA Healthcare for alleged violations of its asset purchase agreement from its acquisition of Mission Hospital that required it to provide the same services as the hospital did when it was operated by non-profi Mission Health. Mission Hospital has been under intense scrutiny from federal and state regulators related to staffinreductions and quality of care.
OKLAHOMA | NOVEMBER 2023
In November, Oklahoma Attorney General Gentner Drummond created a PBM Compliance and Enforcement Unit to evaluate pharmacy complaints regarding PBMs and lead related enforcement actions. As more state legislatures have passed PBM regulation, an increasing number of State AGs are tasked with enforcing new state PBM requirements, drawing increased regulatory attention on this component of the pharmaceutical supply chain.
TEXAS | OCTOBER/NOVEMBER 2022
In the fall of 2022, Texas Attorney General Ken Paxton issued civil investigative demands into hospitals and related corporations that the AG Paxton alleged were illegally denying parents the ability to access the medical records of their teenage children. Most State AGs have broad investigative authority, and State AGs can use the prospect of a costly investigation and related enforcement to push policy objectives.
WASHINGTON | FEBRUARY 2024
Consumer protection and the regulation of debt collection practices has long been a core function of State Attorneys General in many states. This oversight applies equally to healthcare entities. Washington Attorney General Bob Ferguson has had a particular focus on enforcing consumer protections in the healthcare sector—recently reaching a $1 million settlement to resolve allegations of the unlawful collection of medical debt.
