As GOP Convention Set to Start, Holland & Knight on Home Turf in Tampa

From the Blog of LegalTimes
By Andrew Ramonas and Todd Ruger

With the start of the Republican National Convention only days away, Holland & Knight is busy helping to ensure that the festivities in Tampa, Fla., go off without a hitch.

Founded in Tampa, Holland & Knight is the legal adviser to the 2012 Tampa Bay Host Committee, which works with the Republican National Committee and the city to set up facilities, transportation, housing, security and other convention necessities.

Rich Gold, a Washington-based Holland & Knight partner who leads the firm's public policy and regulation practice group, said his firm is primarily assisting the host committee with "nuts and bolts" contract work. "It's been more intense as we get closer," he said.

 

About 50,000 convention-goers, as well as 20,000 additional visitors, protesters and reporters, will descend on Tampa for the convention that is slated to start August 27 and end August 30, the Sarasota Herald-Tribune reported. Organizers have secured more than 400 buses and 16,000 rooms in 105 hotels for the convention, according to the Committee on Arrangements for the 2012 Republican National Convention.

Gold said he expects the convention to run smoothly, despite reports that Tropical Storm Isaac likely will become a hurricane and move toward Florida in the coming days. The lawyer said hurricanes are rare for Tampa. And if it hits Tampa, which is a lobbying client of Holland & Knight, immediate action is "really the city's responsibility," not the firm's concern.

But Holland & Knight will have to worry about matters related to host committee contracts for about three to four months after the convention, Gold said.

"There's going to be cleanup work," he said.

Recovery of Medicare Underpayments

When Grady Memorial Hospital was getting less than their fair share of federal funding for Medicare, they turned to Charles Johnson and Paul Vranicar in the Atlanta office of Holland & Knight.   As a result of an intermediary's interpretation of Medicare regulations, Grady had been underpaid by approximately $4 million from 2003-2004.  The Atlanta team quickly pushed two cases that had been pending for years to hearings before the Provider Reimbursement Review Board in Baltimore.  At the last moment before each hearing, the intermediary agreed to reimburse Grady for almost the full amount owed. 

Grady Memorial Hospital is the primary hospital for inner-city and medically indigent populations in DeKalb and Fulton Counties - the two largest counties in the Atlanta metro area. Grady Memorial Hospital serves as the only Level-1 trauma center in metro Atlanta and for 100 miles in all directions. It also serves as one of only two burn units in the state, provides ambulance coverage for the city of the Atlanta, houses the state's Poison Control Center, and serves as a regional referral for high-risk obstetrics and neonatal care.

66 Members of Congress Join Amicus Brief In Support of University of Texas Admissions Policy

Holland & Knight, Couinsel for Amici      

SUMMARY OF ARGUMENT 

The University of Texas at Austin ("UT") has a compelling interest in attaining a diverse student body that justifies the consideration of race in its admissions. See Grutter, 539 U.S. at 325. Indeed, diversity is a compelling government interest in a number of other contexts as well, including the selection of our future military leadership, the selection of leaders of Executive Branch agencies, and the selection of federal and state judges. Accordingly, the Court's resolution of this case should be informed by these broader concerns and the need for clear guidance from this Court about how race, ethnicity, and gender can be taken into account in government programs in a manner that is consistent with the Constitution.

The Court, in Grutter, formulated a sound method for taking account of an applicant's race as part of a lawful effort to achieve diversity. This method forbids the use of quotas but permits diversity goals based on a good-faith effort to come within a range demarcated by the goal itself. It requires each applicant to be evaluated as an individual and compared with all other candidates for the position(s). The method allows race to be considered as a "plus" factor as part of a holistic review of each applicant's file that does not make race determinative or give it a predetermined weight, and which gives substantial weight to other diversity factors as well. See 539 U.S. at 335-38. This methodology is logical, straightforward and readily enforceable.

UT considered appropriate benchmarks in formulating its admissions program. While eschewing any numerical goals for the admission of minority students, UT concluded that African-Americans and Hispanics are underrepresented in its student-body in comparison to state demographics. Thus, they are eligible to have their race considered as a diversity "plus" factor when their applications are reviewed. "First Amendment interests give universities particular latitude in defining diversity." Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 792 (2007) (Kennedy, J., concurring). This Court has approved diversity goals that constitute "reasonable aspirations" for correcting underrepresentation. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 635 (1987). UT's use of state demographics as a benchmark is clearly reasonable for a state university. Furthermore, UT's effort to increase diversity at the classroom level, as well as the student body level, is also reasonable. The Court has recognized that multiple benchmarks may be appropriate to measure underrepresentation in a refined manner, such as by job categories rather than by reference to the overall workforce. See id.

UT concluded that its existing practice of admitting the top 10% of graduates from every Texas high school was not producing sufficient diversity in its incoming class. Under Grutter, UT could have scrapped this race-neutral "percentage plan" and implemented a race-conscious methodology for all of its admissions without violating the Equal Protection Clause. Instead, it chose to retain the percentage plan for most of its admissions and implement a race-conscious process for only 20-30% of its admissions. UT not only gave good faith consideration to a race-neutral method but adopted that approach to the maximum extent that it deemed workable as part of an overall plan to achieve its various admissions goals.

Petitioner asks the Court to second-guess the judgment of UT and the Texas legislature and rule, in essence, that the top 10% approach produces "enough diversity" so that it precludes UT from using any race-conscious component to help fulfill its diversity goals. This argument contravenes this Court's tradition of giving a degree of deference to a university's academic decisions, including the selection of its student body. See Grutter, 539 U.S. at 328-29. Accepting this argument would undermine the "narrow tailoring" of race-conscious admissions programs and experimentation with race-neutral alternatives. The lesson drawn by other universities would be to employ an entirely race-conscious methodology if they want to preserve some leeway to conduct individualized assessments to assemble a well-rounded, diverse student body. Universities would be discouraged from developing and using race-neutral admissions approaches in combination with race-conscious approaches.

Atlanta Team wins $1.8 Million for Hughes Spalding Children's Hospital

This is the second time in two years that Holland & Knight has secured a money judgment against the state of Georgia on behalf of Grady Health System.

A Holland & Knight team recently handled an appeal to the Superior Court involving the Georgia Department of Community Health's decision to recoup $1.8 million in Medicaid funds for costs incurred at Hughes Spalding Children's Hospital from 1999 - 2002.  The hospital is owned by Grady Health System, Georgia's largest public health system. 

 

 

The Medicaid plan incorporates Medicare rules which require the regulator to recognize an individual hospital's method of cost allocation.  In 2003, the state decided that it would recognize only its own method of cost allocation, and attempted to apply this decision retroactively to Hughes Spalding's cost reports for 1999-2002.  The Superior Court of Fulton County sided with Holland & Knight, agreeing that it was improper for the state to engage in this sort of retroactive decision making. 

 

 

"The Georgia Department of Community Health has essentially acted as if they could run the Medicaid program in any way they like," Charles Johnson (ATL) said.  "We have repeatedly been forced to take them to court to establish that they have to follow their own rules and also abide by principles of due process." 

 

 

The Holland & Knight team was led by Charles Johnson with the assistance of Joshua Bosin, Sarah Leopold, and Jane Warring (all ATL).  If the court's decision holds, Grady will receive a refund of  the $1.8 million they paid the state some time ago.

 

 

In 2005, the Atlanta Team secured a $6.4 million judgment for Grady as a result of the state's failure to follow another portion of its Medicaid rules relating to the federal Medicaid Disproportionate Share Hospital Program. 

 

 

10/9/2007

Rare Grant of Rehearing on Medicaid Reimbursement

With Holland & Knight's help, a large public hospital in Atlanta finally obtains $1.8 million in reimbursements.

Charles Johnson, Sarah Leopold and Josh Bosin (all ATL) recently received an appellate win on behalf of Grady Health Systems.  The case stems from an action by the Georgia Department of Community Health (DCH) to under-reimburse Hughes Spalding Children's Hospital for services rendered to Medicaid patients from 1999-2002. 

Hughes Spalding was owned and operated by the Fulton-DeKalb Hospital Authority (d/b/a Grady Health System).  The DCH based its reimbursement decision on a retroactive application of its hospital services manual, despite the existence of a contract between the parties expressly prohibiting such retroactive action.  The action by the DCH resulted in a $1.8 million loss to Grady. 

Grady's in-house counsel first challenged the action in administrative proceedings and lost before an administrative law judge who affirmed DCH's reimbursement decision.  Holland & Knight came in as appellate counsel and successfully appealed the action to the Superior Court of Fulton County.  The superior court reversed the administrative law judge and awarded Grady $1.8 million. 

On DCH's discretionary appeal to the Georgia Court of Appeals, the court reversed the superior court, adopting the position of the administrative law judge and finding in favor of DCH.  Holland and Knight filed a motion for reconsideration arguing that the court ignored the binding authority of the contract between the parties.  On Nov. 7, the same appellate panel reversed itself, vacated its original opinion and found in the client's favor based on the arguments advanced in the motion for reconsideration.  Click here to view a copy of the opinion. 

"Getting rehearing granted like this is an extremely rare occurrence," said Laurie Webb Daniel (ATL), chair of Holland & Knight's appellate team.  "This win will provide Grady with a much-needed $1.8 million in reimbursements."

11/25/2008

Leading Progressive Groups Join Amicus Brief In Support of University of Texas Admissions Policy

Sigma Pi Phi Fraternity Joins Amicus Brief of the Lawyers' Committee for Civil Rights Under Law, et al., in Fisher v. University of Texas at Austin

 

SUMMARY OF ARGUMENT

Less than ten years ago, this Court reaffirmed that attaining the benefits of diversity in higher education is a compelling state interest that can justify the use of race in university admissions.  Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (endorsing “Justice Powell’s view” in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 314-15 (1978)).  This Court recognized that, for decades, Justice Powell’s opinion in Bakke “has served as the touchstone for constitutional analysis of race-conscious admissions policies,” as “[p]ublic and private universities across the Nation have modeled their own admissions programs on [his] views on permissible race-conscious policies.”  Grutter, 539 U.S. at 323.  This Court endorsed Justice Powell’s view because diversity in education remains important “in a society, like our own, in which race unfortunately still matters.”  Id. at 333.  Because, as we explain below, race matters still in 2012, the reasoning and holdings of Bakke and Grutter remain sound and should govern this case. 

It is crucial that the Court’s consideration of this case be informed by a proper understanding of the nature of a university’s interest in diversity.  As this Court has recognized, the presence of a diverse student body on campus leads to a range of educational benefits, including improved learning outcomes and better preparation for work and citizenship.  Critically, however, these benefits will not necessarily be realized merely by the admission of certain numbers or percentages of broad categories of students.  Studies show that the benefits of diversity depend upon the character and frequency of interactions among students of diverse backgrounds.  This insight should guide the Court’s application of strict scrutiny to the admissions policies of the University of Texas (“UT”).

Because race and ethnicity continue to affect the experiences and perspectives of individuals in society, racial and ethnic diversity[1] is one important aspect of the diversity that promotes the best educational outcomes.  As Justice O’Connor observed in Grutter, “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.”  Grutter v. Bollinger, 539 U.S. 306 (2003).  A student’s identity as a member of a particular racial group inevitably shapes, in various ways, the experiences and perspectives that student brings to both campus life and the classroom.  For that reason, admitting a student body that is racially diverse remains a compelling educational interest of a college or university.

But there are no magic numbers that, by themselves, produce diversity’s benefits.  Instead, meaningful interactions among students of different races are essential to—and indeed are the operative mechanism for—achieving diversity’s benefits.  This fact compels at least three conclusions: 

First, a university seeking to realize diversity’s benefits may consider not only the race or other characteristics of admitted students, but also how those students will contribute to the school’s courses, programs, and overall educational environment.  Social science research shows that meaningful interactions among students of different races in classrooms, departments, and campus life are key to achieving a university’s educational interests.  Thus, the “truly individualized consideration” that this Court deemed constitutionally required if race is to be considered at all, Grutter, 539 U.S. at 334—and which UT has implemented—is crucial to realization of diversity’s benefits.

Second, Petitioner’s assertion that the University’s compelling interest is necessarily satisfied by numbers alone—here, that it was satisfied when conglomerated “Hispanic and African-American enrollment” constituted “21.4% of the incoming freshman class,” Petr’s Br. 35—is misplaced.  Focusing exclusively on the numbers or percentages of students of color on campus without also permitting race to factor into individualized admissions decisions fails to protect the university’s interest in promoting meaningful interactions of students of different races inside and outside the classroom.  To merely aim to admit particular numbers of minority students, without also considering whether that is sufficient by itself to attain the educational benefits of diversity, “would amount to outright racial balancing,” which this Court has held is “patently unconstitutional.” Grutter, 539 U.S. at 331.

Third, the Court’s scrutiny of UT’s limited use of race in its admissions decisions must take into account that these decisions are made in an educational context.  See id. at 327 (“Context matters when reviewing race-based governmental action under the Equal Protection Clause.”)  A university’s admissions decisions intended to increase meaningful interaction among students of different backgrounds are educational judgments that are entitled to a measure of deference.  As Justice Frankfurter stated in Sweezy v. New Hampshire, the “four essential freedoms of a university” are: “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (emphasis added).  Efforts to realize the benefits of racial diversity, without sacrificing other educational objectives of a university’s admissions policies (such as ensuring that admitted students are adequately prepared and otherwise diverse), require numerous judgments about both the students to be admitted and the nature of students’ interactions inside and outside the classroom.  These judgments require expertise in higher education that is clearly possessed by universities and is squarely within universities’ constitutional domain.  The courts should therefore accord some deference to a university’s judgments about both the need for racial diversity and the means that will achieve it without sacrificing other important educational interests.

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[1] Throughout the remainder of this brief, for the sake of brevity, references to “racial diversity” encompass both racial and ethnic diversity.