Private Market Talks: Destination Europe with Pemberton’s Co-Founder Symon Drake-Brockman [Podcast]
As America turns inwards, investors are turning east, towards Europe. It’s a seismic shift not seen since the end of WWII. In this episode, we talk with Symon Drake-Brockman, co-founder and Managing Partner of Pemberton Asset Management, one of Europe’s largest private credit platforms, about the implications of this shift. Prior to starting Pemberton, Symon navigated critical world events on behalf of major financial institutions, including the impact of Russia seizing Crimea, the Asian financial crisis, the Global Financial Crisis, and COVID. During our conversation, Symon helps to put current events into perspective and offers insights as to why today’s capital allocators are rediscovering Europe.
“Big, Beautiful Bill”: Federal Tax Bill Would Restrict the Employee Retention Credit
A sweeping federal tax bill that is currently under consideration in the US House of Representatives contains provisions that would significantly change the administration and enforcement of the Employee Retention Credit (ERC).
The ERC was enacted in 2020 as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act to provide financial relief to businesses affected by the COVID-19 pandemic by incentivizing employers to retain employees on payroll and rehire displaced workers. The ERC allowed employers that experienced significant disruptions due to government orders or a substantial decline in gross receipts to claim a tax credit equal to a percentage of qualified wages paid to employees. Millions of employers have filed refund claims seeking ERC for periods in 2020 and 2021. Since the enactment of the CARES Act, the Internal Revenue Service (IRS) has issued roughly $250 billion in ERC. More than 500,000 claims remained pending as of April 2025.
The federal tax bill, dubbed the “Big, Beautiful Bill” by US President Donald Trump, would prevent the IRS from allowing ERC that was claimed by a taxpayer on or before January 31, 2024. The deadline to claim ERC for taxable quarters in 2020 was April 15, 2024, and the deadline to claim ERC for taxable quarters in 2021 was April 15, 2025. The tax bill would thus appear to render ineligible all pending claims that were made after January 31, 2024, which are likely to be considerable in number. The bill is ambiguous as to whether taxpayers who have already been allowed ERC would need to repay those amounts to the extent their claims were made after January 31, 2024.
The tax bill would also extend the statute of limitations on the IRS’s ability to assess amounts attributable to ERC. Presently, the IRS has three years to assess amounts associated with ERC for all periods in 2020 and for Q1 and Q2 of 2021. The IRS has five years to assess amounts associated with ERC for Q3 and Q4 of 2021. The proposed legislation would extend both of these limitations periods to six years. This change would be significant, especially because the IRS is authorized to assess and collect erroneously allowed ERC by notice and demand.
Practice Point: Taxpayers with pending ERC claims should be alert to ongoing legislative developments – as this area continues to be a prominent focus of federal tax policy – and prepare now to defend ERC claims (even those filed after the potentially new deadline of January 31, 2024). Enactment of the changes proposed in the tax bill could dramatically restrict the amount of ERC currently eligible to be paid or credited and may empower the IRS to recapture a greater amount of claims already allowed. But considerable uncertainties remain as to the scope of the changes proposed in the bill. In the face of this uncertainty, taxpayers should consult experienced counsel who can assist them in preparing to defend ERC claims to which they are entitled.
CFPB Rescinding the 2021 COVID-19 Mortgage Servicing Final Rule
On May 15, 2025, the Consumer Financial Protection Bureau (CFPB) filed an interim final rule in the Federal Register that will rescind its prior 2021 COVID-19 mortgage servicing final rule. The interim final rule is set for publication in the Federal Register on May 16, 2025, and would become effective 60 days after publication. Comments will be accepted for 30 days after publication.
As a refresher, the 2021 COVID-19 final rule added the following to Regulation X:
Temporary enhanced early intervention live contact requirements;
Temporary “procedural safeguards” that had to be satisfied before making the first notice or filing to initiate foreclosure; and
An exception to the anti-evasion provision that allows “[c]ertain COVID-19-related loan modification options” to be offered to a borrower based upon an evaluation of an incomplete loss mitigation application.
The CFPB’s stated rationale for rescinding the 2021 COVID-19 final rule is twofold. First, it explains that much of the 2021 final rule was intended to be temporary. For example, the enhanced early intervention live contact requirements contained an expiration date of October 1, 2022. Similarly, the procedural safeguards only applied to first notices or filings made prior to January 1, 2022. Therefore, those provisions “have been sunset by their own terms, and . . . [t]hus, borrowers and servicers are no longer utilizing these safeguards.” Furthermore, as these were COVID-19-related protections added to the law, the CFPB notes that former President Biden formally ended the COVID-19 national emergency when he signed a joint resolution of Congress on April 10, 2023.
With respect to the anti-evasion exception for certain loan modification options, the CFPB notes that it has already proposed a rule that would provide servicers with flexibility to offer loss mitigation options more freely. “As part of the revised framework, the proposal would have removed the provisions implemented in response to the COVID-19 pandemic, and the Bureau did not receive public comments on the proposed removal of those provisions.”
The second reason for this interim final rule is, as the CFPB explains, that “it is the policy of the Bureau to streamline regulatory requirements to reduce burdens on the American public. The Bureau has determined that, in light of the end of the COVID-19 pandemic, these regulations needlessly complicate Regulation X without commensurate benefits.”
Takeaways and Observations
The CFPB’s decision to rescind the enhanced early intervention live contact requirements and the foreclosure procedural safeguards is almost certainly inconsequential, as those provisions have sunset and no longer have any effect. However, in our opinion, the CFPB is understating the impact of rescinding the anti-evasion exception for some loan modifications. While that provision was enacted in response to COVID-19 and the pandemic is over, the wording chosen by the CFPB in the 2021 final rule was intentionally (albeit subtly) broader in scope and has allowed servicers to continue offering certain loan modification options in a streamlined fashion (i.e., without having to receive a complete loss mitigation application). Therefore, rescinding that provision and only providing servicers with 60 days to change internal processes is going to be a significant challenge.
In that regard, it is noteworthy that the Section 1022 analysis portion of the interim final rule states that “[t]his rule does not impose any costs to consumers or covered persons or have any direct impact on consumers’ access to consumer financial products or services.” To the contrary, this rule is likely to impose implementation costs on servicers and will reduce consumers’ access to loan modification options. That is certainly relevant when thinking about the cost-benefit analysis associated with this rulemaking.
It is also notable that this interim final rule does not rescind the anti-evasion exception for COVID-19-related deferral and partial claim loss mitigation options in 1024.41(c)(2)(v). That exception was separately enacted as a part of the CFPB’s June 30, 2020, interim final rule, and so we will be watching to see whether the CFPB takes separate action to rescind that provision in the future since it also deals with COVID-19.
In sum, while the CFPB arguably suggests that this interim final rule is uncontroversial and will have minimal impact that is very likely not the case. Servicers should immediately consider the impact of this interim final rule on their internal processes and consider whether to submit comments to the CFPB and/or begin making necessary changes to their business.
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Equal Protection Not on the Menu This Time
In North End Chamber of Commerce (“NECC”) v. City of Boston, the NECC and several restaurants in the North End neighborhood of Boston (“Plaintiffs”) filed suit against the City of Boston (“City”), alleging that the City unlawfully curtailed and later banned on-street dining in the North End. The Court granted the City’s motion to dismiss Plaintiffs’ complaint (“Complaint”).
In response to the COVID-19 pandemic in 2020, the City implemented an outdoor-dining program authorizing restaurants in designated areas to offer dining on public streets. In 2022, the City imposed an “impact fee” of $7,500 on participating North End restaurants and a monthly fee of $480 for each parking space used by the restaurants’ outdoor patios. The City did not charge these fees to participating restaurants in any other Boston neighborhood. The City also limited the outdoor-dining season in the North End to five months, compared to the eight-to-nine months outside of the North End. The following year the City completely banned on-street dining in the North End but not elsewhere. Plaintiffs then filed the Complaint.
The City moved to dismiss, claiming the Complaint failed to state a claim upon which relief could be granted and that it violated Rule 8(a)(2) of the Federal Rules of Civil Procedure (“Rule 8”). The Court agreed with the City as to compliance with Rule 8. Rule 8 requires a plaintiff to write “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Court concluded that the Complaint, which was over two hundred pages long and “omitted virtually no detail,” contained excessive assertions that were unnecessary to advance the causes of action. The Court warned that “unnecessary prolixity” is disfavored by the Court because it imposes a significant burden on both the Court and the responding party.
Plaintiffs also claimed that the NECC lacked associational standing to sue either directly or on behalf of its members. The Court disagreed, holding that the NECC had standing to sue for its equitable relief claim, but did not have standing to sue for monetary damages. The NECC was not entitled to compensation for the various injuries suffered by its members, and the member restaurants were necessary parties to assess each of their damages separately.
The Court next concluded that Plaintiffs’ equal protection claims failed. First, the Court reasoned that Plaintiffs failed to allege the sort of discrimination that would trigger strict scrutiny. Strict scrutiny is triggered if the action in question burdens a suspect class, has discriminatory intent with respect to racial or national origin, or impinges upon a fundamental right. The Court disagreed that the Constitution vested Plaintiffs with a fundamental right to on-street-dining. Nor did the City’s policies explicitly differentiate among individuals based on a suspect classification, such as race, ethnicity, or national origin. The Court also disagreed that the City acted with discriminatory intent where Plaintiffs failed to identify a “clear pattern” of conduct historically targeting the North End or “white, Italian Americans.” Nor was there evidence that the regulations had disproportionate impact on persons of Italian heritage. Plaintiffs therefore failed to plausibly allege the sort of discrimination that would trigger strict scrutiny.
The Court proceeded to apply rational-basis review, under which a classification will withstand a constitutional challenge so long as it is rationally related to a legitimate state interest and is neither arbitrary, unreasonable nor irrational. Here, to justify the fees imposed on Plaintiffs, the City considered the “unique impacts of outdoor dining on the quality of residential life,” such as “trash, rodents, traffic, and parking problems.” To justify the ban on on-street dining in the North End, the City cited the North End’s high density of restaurants and foot traffic, narrow streets and sidewalks, resident parking scarcity, and other related considerations. The City also pointed to the scheduled closures of the Sumner Tunnel and continued congestion around the North Washington Street Bridge construction project. The Court concluded that the City’s explanations for the policies sufficiently showed that the reasons underlying the policies were rationally related to legitimate government interests.
The Court also addressed Plaintiffs’ “class-of-one” claim, whereby an equal protection claim may in some circumstances be sustained when a plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference. The Court reasoned that neither the neighborhood itself nor the restaurants therein were similarly situated to those outside the North End because the North End is exceptionally dense and located adjacent to two major construction projects. The Court also held that Plaintiffs failed to plausibly plead that the City acted with bad faith or had malicious intent to injure them, and therefore concluded that the Complaint failed to plausibly plead a class-of-one claim.
Plaintiffs also asserted violations of procedural and substantive due process. As the Court explained, the former ensures that government will use fair procedures with respect to a constitutionally protected property interest, and the latter functions to protect individuals from particularly offensive actions by officials even when the government employs facially neutral procedures in carrying out those actions. The Court held that both claims failed because Plaintiffs plainly did not have a property interest in on-street-dining licenses.
Finally, Plaintiffs alleged that the impact and parking fees imposed on Plaintiffs for the outdoor-dining program constituted an unlawful tax. The Court disagreed. The fees were not an unlawful tax where: (1) they were charged in exchange for a benefit (a permit to authorize on-street dining that would otherwise be unlawful); (2) Plaintiffs paid the fee by choice, and had the option to avoid the charge by not participating in the program; and (3) the charges were collected to compensate the governmental for its expenses in providing the services rather than to raise revenue. For example, the impact fee paid for services that were related to the program, including rat baiting, power washing of sidewalks, and painting of street lane lines. The parking fees were paid directly to garages to provide parking for residents who lost it as a result of the outdoor-dining program. Plaintiffs therefore failed to show that the fees were unlawful taxes.
For all these reasons, the Court allowed the City’s Motion to Dismiss.
CMS Proposes Medicare Payment Policies for Hospital Inpatient Services for Federal Fiscal Year 2026
The Centers for Medicare & Medicaid Services (CMS) recently published the fiscal year (“FY”) 2026 proposed rule for Hospital Inpatient Prospective Payment Systems (IPPS) (the “Proposed Rule”). Comments to the Proposed Rule must be submitted by 5 p.m. EDT on June 10, 2025.
The Proposed Rule reflects a number of broader policy changes announced by the Trump Administration through its Executive Orders and other agency actions, including an effort to de-regulate and to limit the use of notice and comment rulemaking unless it is otherwise required by statute; and removing hospital quality measures related to health equity, social drivers of health, and COVID-19 vaccination coverage among health care personnel. The Proposed Rule does not include anticipated changes to the Medicare Conditions of Participation for hospitals related to gender affirming care; those may still be forthcoming in the Medicare payment proposed rules for hospital outpatient services and physician and other health care professionals’ services that will be published in early July.
Other policy proposals of significant interest to academic medical centers and other hospitals include:
Continued implementation of the Transforming Episode Accountability Model (TEAM) with mandatory participation for hospitals in certain geographic areas, starting in January 1, 2026 — CMS is moving forward with the five-year mandatory episode-based payment model for selected acute care hospitals, with several proposed new policies to implement the model. Proposals include a limited deferment period for new hospitals and policies to account for risk adjustment and coding changes, among other things.
Codification of long-standing CMS policies for counting resident full-time equivalent (FTE) positions for purposes of calculating the enhanced Medicare payments to teaching hospitals for direct graduate medical education (DGME) and indirect medical education (IME) costs — CMS is not proposing any changes to its long-established FTE counting policy. Under existing policies, Medicare makes payments to teaching hospitals for DGME and IME, both of which are based on the number of residents (measured by FTEs) that the hospital trains during the year.
Revision to the accepted cost accounting methodology for nursing and allied health programs (which Medicare reimburses on a reasonable-cost basis) — Following a decision from the U.S. District Court for the District of Columbia in favor of hospital plaintiffs disputing the current CMS methodology, CMS proposes to clarify its regulations to explain how the net costs for approved educational activities are calculated. CMS claims that the adjusted methodology will be “more accurate, albeit less” that what the providers claimed in the lawsuit.
Discontinuation of a low-wage index hospital policy adopted during the first Trump Administration and that was declared invalid by the D.C. Circuit Court of Appeals in 2024 — In light of the court’s ruling that CMS lacked statutory authority to adopt the low-wage index hospital policy and related budget neutrality adjustment, CMS now proposes to discontinue the policy beginning in FY 2026. CMS also proposes a budget-neutral transitional exception for significantly impacted hospitals.
Continuation of long-standing CMS policies related to add-on payments for new technologies (representing approximately $234 million in payments during FY 2026) — CMS proposes to continue making new technology add-on payments for 26 products that continue to meet the newness criterion. CMS also discusses 43 additional product applications, 29 of which applied under alternative pathways for breakthrough devices and qualified infectious disease products.
Payment Update
The Proposed Rule includes a projected 2.4% increase in IPPS payment rates for eligible general acute care hospitals, which will increase Medicare hospital payments nationwide by $4 billion. Notable components of the projected expenditures include a $1.5 billion projected increase in Medicare uncompensated care payments to disproportionate share hospitals in FY 2026, as well as $234 million in additional payments for inpatient cases involving new medical technologies in FY 2026, primarily driven by continuing new technology add-on payments (NTAP) for several technologies.
Request for Information on Deregulation
Pursuant to President Trump’s January 31, 2025 Executive Order 14191, Unleashing Prosperity Through Deregulation, CMS specifically requests public input on approaches and opportunities to streamline regulations and reduce administrative burdens on providers, suppliers, beneficiaries, Medicare Advantage and Part D plans, and other interested parties participating in the Medicare program. Among other things, CMS requests information about existing regulatory requirements and policy statements that could be waived or modified without compromising patient safety or the integrity of the Medicare program, changes to simplify reporting and documentation requirements without affecting program integrity, and requirements or processes that are duplicative either within the Medicare program itself or across other health care programs (including Medicaid, private insurance, and state or local requirements).
Like other agencies, CMS requests all comments related to the deregulation RFI be submitted through a program-specific weblink.
Sunsetting of COVID-19 Paid Emergency Leave Law
Beginning July 31, 2025, New York employers will no longer be required to provide separate leave for COVID-19 quarantines and isolations. This marks a significant shift in pandemic-related employment policies for businesses in the Empire State.
New York’s COVID-19 Paid Emergency Leave (“PEL”) was originally enacted in March 2020, during the height of the COVID-19 outbreak. PEL requires employers provide up to fourteen (14) days of protected, paid leave to employees who are subject to a mandatory or precautionary order of isolation or quarantine due to COVID-19, and who cannot work remotely. PEL is limited exclusively to COVID-19, and its paid leave benefits are separate from and additional to other paid sick and safe leave benefits—including New York State’s Paid Sick and Safe Leave law, New York City’s Earned Sick and Safe Time law, and New York’s Paid Family Leave law.
When enacted, PEL did not contain an expiration date; nor was one provided in subsequent guidance. But on April 24, 2024, Governor Hochul signed the 2024-2025 New York State Budget. This Budget includes a provision sunsetting PEL—a measure many employers and legislators believed was long overdue. Indeed, while numerous other jurisdictions passed similar COVID-19 leave laws, New York’s PEL is the last such statute remaining in effect.
With the impending repeal of PEL, employers are reminded to remain compliant with other paid sick and safe leave benefits. Serious COVID-19 cases or other illnesses may still trigger obligations under various protected leave and medical accommodation laws, such as the federal Family and Medical Leave Act, the Americans with Disabilities Act, the New York Human Rights Law, and the New York City Human Rights Law.
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Updates to the Updates of FHA’s Servicing, Loss Mitigation, and Claims Processes
At the tail end of the Biden administration, the Federal Housing Administration (FHA) published Mortgagee Letter 2025-06, which was tilted Updates to Servicing, Loss Mitigation, and Claims. The 251-page mortgagee letter outlines various changes to FHA’s servicing requirements in Handbook 4000.1, such as updated requirements for forbearances and extending the availability of COVID-19 Recovery Options to February 1, 2026. However, on April 15, 2025, FHA published Mortgagee Letter 2025-12, which replaced the content and implementation of Mortgagee Letter 2025-06.
Mortgagee Letter 2025-12 is titled Tightening and Expediting Implementation of the New Permanent Loss Mitigation Options. The title of the mortgagee letter is reflective of some of the major differences between it and Mortgagee Letter 2025-06. For example, FHA highlighted the following impacts of Mortgagee Letter 2025-12 in its announcement titled FHA INFO 2025-21:
Ending the availability of COVID-19 Recovery Options on September 30, 2025, as opposed to February 1, 2026;
Moving up the effective date of FHA’s new permanent loss mitigation options to October 1, 2025, as opposed to February 2, 2026;
Officially ending the FHA-HAMP option on September 30, 2025;
Limiting a borrower to one permanent loss mitigation option every 24 months, as opposed to 18 months; and
Reversing scheduled increases in borrower and/or servicer incentives related to certain loss mitigation options.
In addition to these published changes, there are some notable differences between Mortgagee Letters 2025-12 and 2025-06 that FHA did not highlight in its announcement. For example, Mortgagee Letter 2025-12 completely deletes the language accessibility requirements Mortgagee Letter 2025-06 proposed for Handbook 4000.1.III.A.1.a.ii.(D). The language accessibility requirements would have required mortgagees to include a disclosure on all notices sent to borrowers addressing the availability of language access services for borrowers with limited English proficiency (LEP). The LEP disclosure would have been required to be sent, at a minimum, in English and Spanish. Additionally, Mortgagee Letter 2025-12 removes any reference to discrimination based on “sexual orientation or gender identity” from the Nondiscrimination Policy in Handbook 4000.1.III.A.1.a.ii.(C).
From a mortgage servicer’s point of view, the biggest challenge in Mortgagee Letter 2025-12 is the faster deadline for phasing out COVID-19 Recovery Options. Servicers must adjust to updated FHA servicing rules more quickly and cannot offer certain COVID-19 Recovery Options after September 30, 2025.
Finally, looking ahead, it is important to note that FHA’s announcement of Mortgagee Letter 2025-12 appears to call into question the future of the Payment Supplement Program. While there is nothing definitive at this point, the announcement does state that FHA is conducting an “overall evaluation… to determine if it should remain a part of HUD’s loss mitigation program.” Given the current administration’s recent “tightening” of other aspects of the FHA servicing program through Mortgagee Letter 2025-12, it is likely that there are more FHA servicing changes to come.
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Remote Meetings Reauthorized Through June 2027
On March 28, 2025, Mass. Governor Maura Healy signed an emergency law extending the COVID-19 remote and hybrid meeting authorizations for public meetings of local boards and committees until June 30, 2027. The law, Chapter 2 of the Acts of 2025, also extends legislation permitting remote representative Town Meetings and reducing the quorum requirements for open Town Meetings. The COVID-19-era legislation allowing remote meetings was set to expire on March 31, 2025, but was extended just in time to permit municipalities to continue holding meetings and hearings remotely. The ability to hold remote meetings has been popular among board members, developers, and citizens alike for improving access and saving time driving to and from town halls.
Legislation to permanently allow remote meetings (the so-called “Municipal Empowerment Act”, H.3342) has been resubmitted by Representative Danielle Gregoire of Marlborough. We’ll track this bill and report back on any significant developments.
DOJ Withdraws 11 Pieces of Americans With Disabilities Act Title III Guidance: What Covered Businesses Need to Know
The Department of Justice (DOJ) withdrew 11 documents providing guidance to businesses on compliance with Title III of the Americans with Disabilities Act (Title III). The DOJ Guidance sets forth how the agency interprets certain issues addressed by Title III of the ADA. Although the guidance has been withdrawn, the law remains the same. Title III requires that covered businesses must provide people with disabilities with an equal opportunity to access the goods or services that they offer.
The DOJ says the documents were withdrawn in order to “streamline” ADA compliance resources for businesses consistent with President Trump’s January 20, 2025 Executive Order “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis” . According to the DOJ’s press release, “Today’s withdrawal of 11 pieces of unnecessary and outdated guidance will aid businesses in complying with the ADA by eliminating unnecessary review and focusing only on current ADA guidance. Avoiding confusion and reducing the time spent understanding compliance may allow businesses to deliver price relief to consumers.”
The DOJ identified the following guidance for withdrawal:
COVID-19 and the Americans with Disabilities Act: Can a business stop me from bringing in my service animal because of the COVID-19 pandemic? (2021)
COVID-19 and the Americans with Disabilities Act: Does the Department of Justice issue exemptions from mask requirements? (2021)
COVID-19 and the Americans with Disabilities Act: Are there resources available that help explain my rights as an employee with a disability during the COVID-19 pandemic? (2021)
COVID-19 and the Americans with Disabilities Act: Can a hospital or medical facility exclude all “visitors” even where, due to a patient’s disability, the patient needs help from a family member, companion, or aide in order to equally access care? (2021)
COVID-19 and the Americans with Disabilities Act: Does the ADA apply to outdoor restaurants (sometimes called “streateries”) or other outdoor retail spaces that have popped up since COVID-19? (2021)
Expanding Your Market: Maintaining Accessible Features in Retail Establishments (2009)
Expanding Your Market: Gathering Input from Customers with Disabilities (2007)
Expanding Your Market: Accessible Customer Service Practices for Hotel and Lodging Guests with Disabilities (2006)
Reaching out to Customers with Disabilities (2005)
Americans with Disabilities Act: Assistance at Self-Serve Gas Stations (1999)
Five Steps to Make New Lodging Facilities Comply with the ADA (1999)
The DOJ is also “raising awareness about tax incentives for businesses related to their compliance with the ADA” by prominently featuring a link to a 2006 publication.
The withdrawn guidance was prepared before the most recent Title III regulations went into effect in 2011 or deals with COVID-19. We do not expect the DOJ’s withdrawal of the guidance to have significant impact on business operations. However, Jackson Lewis attorneys, including Disability Access Litigation and Compliance group are closely monitoring the rapid developments from the federal agencies that impact our clients.
What Would John Wilkes Booth Do? Mandatory COVID Vaxes for Actors
Although the threat of COVID-19 (remember that?) seems to have diminished considerably over the past five years, once upon a time in Hollywood many production companies (along with other employers) required employees to be vaccinated upon pain of losing their job.
In early 2022, Apple Studios LLC conditionally offered actor Brent Sexton the role of U.S. President Andrew Johnson in its production of Manhunt, a limited series about the hunt for John Wilkes Booth following the assassination of Abraham Lincoln. One of the conditions for Sexton’s casting was that he be fully vaccinated, in compliance with Apple’s mandatory on-set vaccination policy. Sexton refused to get vaccinated, seeking an exemption on medical grounds. After considering Sexton’s request, Apple ultimately decided that an unvaccinated actor could not safely be accommodated on set and withdrew Sexton’s offer. Sexton sued Apple for disability discrimination and related claims.
In response, Apple filed a motion to strike Sexton’s complaint under California’s anti-Strategic Lawsuit Against Public Participation (“anti-SLAPP”) law, which authorizes early dismissal of “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” The trial court denied Apple’s motion, but the Court of Appeal reversed, holding that (1) Apple’s decision not to cast Sexton was in fact “protected expressive conduct” under the First Amendment; and (2) Sexton’s claims lacked merit because, by remaining unvaccinated, he failed to meet the “safety” qualification required for the job he sought.
To Jab, or Not to Jab: That Is the Question
The Court found that Apple’s decision not to cast Sexton furthered free speech in two ways. First, the choice of how to portray Andrew Johnson—a controversial and important historical figure—was a creative endeavor in and of itself, with the selection of different actors “contribut[ing] to the public issue of how contemporary viewers might conceive of Johnson.” Second, by making vaccination mandatory on the Manhunt set, “Apple took a stand” on the still-live public debate about vaccination policy.
While legal protections for casting decisions is a remote issue for most employers, the second “speech” element that the Court identified in Apple’s conduct—its decision to make vaccines mandatory on the Manhunt set—has potentially sweeping implications. Noting that there is still “a public debate over vaccination policy,” the Court found that by implementing and enforcing an on-set vaccine mandate, Apple “contributed to public discussion of vaccination policy.”
“Safety” as a Bona Fide Occupational Qualification?
In addition to finding Apple’s actions protected as expressive conduct, the Court also concluded that Sexton’s discrimination claims failed on the merits. A key element for a meritorious employment discrimination claim is that the plaintiff must show that they are qualified for the position. Here, the Court found that, because Sexton was unvaccinated, he was not qualified for the job he sought. How this decision will be harmonized with established case law on religious and medical exemptions remains to be seen. As always, we will continue to monitor this topic for any updates. (In the meantime, Manhunt (which is excellent!) is still streaming, featuring actor Glenn Morshower in the role of Andrew Johnson.)
Medicare Telehealth Gets Another Temporary Lifeline – Will Congress Make it Permanent?
On March 15, 2025, President Trump signed a continuing resolution to avert a government shutdown, which included a critical six-month extension of Medicare telehealth flexibilities through September 30, 2025. This six-month extension provides a temporary reprieve from the looming expiration of telehealth waivers that have been in place since the COVID-19 Public Health Emergency (PHE). While this is a positive development, it underscores the ongoing uncertainty surrounding Medicare’s long-term telehealth policy—an issue that Congress must address with a more permanent solution. The healthcare industry has increasingly emphasized the need for regulatory certainty to support long-term planning, investment in telehealth infrastructure and sustained access to care for Medicare beneficiaries.
What the Extension Means for Providers
Medicare providers will continue to operate under the existing telehealth flexibilities for an additional six months. This means:
No Geographic or Site Restrictions – Medicare beneficiaries can receive telehealth services regardless of their location, including from their homes.
Expanded Practitioner Eligibility – A broader range of healthcare providers, including physical therapists, occupational therapists and speech-language pathologists, can continue furnishing telehealth services.
Coverage for Audio-Only Services – Medicare will maintain reimbursement for certain audio-only visits, which have been critical for reaching patients without reliable broadband access.
Hospital and Facility-Based Telehealth – Flexibilities allowing hospitals and health systems to use telehealth for certain hospital-at-home and outpatient services remain in place.
FQHCs and RHCs Participation – Federally Qualified Health Centers and Rural Health Clinics can continue to offer telehealth services, ensuring access in underserved areas.
Mental Health Flexibilities – The in-person evaluation requirement for mental health services delivered via telehealth has been deferred, allowing patients to continue receiving mental health care via telehealth.
For hospitals, health systems and provider groups that have invested heavily in telehealth infrastructure, this extension offers short-term stability. However, the uncertainty beyond September 2025 remains a pressing concern.
Industry Perspective on the Need for Regulatory Certainty
Since the expanded use of telehealth under Medicare, healthcare providers, hospitals and technology developers have adapted their care delivery models and made significant investments in telehealth infrastructure. Many industry stakeholders have highlighted the following considerations as Congress continues evaluating the long-term future of Medicare telehealth policy:
Regulatory Stability for Long-Term Decision-Making – Healthcare organizations make strategic decisions—ranging from workforce planning to technology investments—based on long-term regulatory and reimbursement expectations. Without a definitive, long-term Medicare telehealth policy, providers must plan within an uncertain framework, creating challenges in making sustainable investments.
Access to Care for Underserved and Rural Populations – Telehealth has played a key role in expanding access to care, particularly for rural and underserved populations who may face geographic, transportation or mobility barriers. Healthcare providers serving these communities have emphasized the importance of telehealth in maintaining access to primary care, specialty services and mental health treatment. Given the growing reliance on telehealth among Medicare beneficiaries, there is industry interest in ensuring continued access to these services beyond temporary extensions.
Innovation and Growth in Digital Health – The expansion of telehealth has supported technological innovation across the healthcare industry, from remote patient monitoring to AI-driven clinical documentation tools. Industry stakeholders have noted that uncertainty around Medicare’s long-term telehealth policy can impact investment in emerging digital health solutions, as healthcare organizations and technology developers assess future regulatory and reimbursement environments.
What’s Next? The Push for Permanent Reform
With the clock now ticking toward the new September 30, 2025, deadline, major healthcare organizations are advocating for permanent legislative action. The American Telemedicine Association (ATA) and American Hospital Association (AHA) continue to urge Congress to cement telehealth’s place in modern healthcare, emphasizing its role in expanding access, improving outcomes and addressing provider shortages. Similarly, several bipartisan efforts have been initiated to establish permanent telehealth policies:
1. Telehealth Modernization Act of 2024 (H.R. 7623)This bill seeks to permanently extend certain telehealth flexibilities that were initially authorized during the COVID-19 public health emergency.
2. Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act of 2023 (H.R. 4189; S. 2016)This bill proposes to expand coverage of telehealth services under Medicare, aiming to remove geographic restrictions and expand originating sites, including to allow patients to receive telehealth services in their homes.
3. Preserving Telehealth, Hospital, and Ambulance Access Act (H.R. 8261)This bill aims to extend key telehealth flexibilities through 2026, including provisions for hospital-at-home programs and ambulance services.
While there appears to be bipartisan support recognizing telehealth as a vital component of modern healthcare delivery, a long-term solution is critical to ensuring that telehealth remains a viable and effective care delivery option for Medicare beneficiaries well beyond 2025. Providers should take advantage of the additional time to solidify their telehealth strategies while remaining engaged in advocacy efforts.
Stakeholders—including hospitals, health systems, provider groups and digital health technology companies —must continue urging Congress to pass permanent telehealth legislation that preserves access, ensures fair reimbursement and provides regulatory clarity.
Department of State Reduces Period of Eligibility To Use the Dropbox For Visa Renewals
Prior to the terrorist attacks of 9/11 U.S. consular officers were able to process and approve many visa applications without interviews using the Dropbox procedure. After 9/11, when it became known that several of the terrorists who carried out the attacks had received visas in Saudi Arabia without personal interviews, the Department of State seriously curtailed access to the Dropbox for visa issuance and renewals, limiting these to diplomatic and official visa applicants.
Over the next two decades the Department gradually relaxed restrictions on visa processing without interview, allowing certain applicants applying to renew previously approved visas to do so in limited circumstances without requiring a personal interview. Qualifying applicants could submit their passports and documentation through the Dropbox for consular review and adjudication, thereby avoiding the need to come in for a personal interview. Persons seeking to use the Dropbox to reapply for visas in the same category could do so within the 12 months following the expiration of their previous visas.
During the COVID pandemic, in an effort to reduce the numbers of persons needing to come to consular sections for personal interviews, the Department extended the window for use of the Dropbox from 12 to 48 months, greatly expanding the number of individuals who could make use of it to renew their visas. It also allowed eligible applicants to apply through the Dropbox for other nonimmigrant visa categories. The policy proved highly popular both with the public and with consular personnel, as it reduced crowding and increased operational efficiency.
On February 18, 2025, the Department announced new guidelines for use of the Dropbox for visa renewal that reverted to the pre-pandemic 12-month limitation. Eligible applicants will also no longer be able to use the Dropbox to apply for visas in a category other than the one most recently obtained.
The immediate impacts of the changes to the Department’s Dropbox policy will be felt most strongly by those individuals previously eligible to utilize the Dropbox for up to 48 months who are outside the U.S. and wish to renew a visa issued to them more than 12 months ago. These applicants can no longer use the Dropbox and will instead have to apply in person to renew their visas and those issued to their family members. Moreover, a sudden decrease in the number of people eligible for Dropbox renewals will have a negative impact in the availability of in-person visa appointments at posts that previously processed large numbers of Dropbox renewals, such as India.
Individuals currently in the US in valid nonimmigrant status who want to travel outside the US and plan to renew their visas while abroad will need to arrange visa interview dates that will coincide with their planned travel; otherwise they may find themselves stuck outside the US and unable to obtain timely visa appointment dates to renew their visas. If the post where they must reapply has a considerable waiting period for visa appointments, this could prove disruptive to confirmed travel plans.
Employers should also be aware that increases in the number of individuals who require in-person visa interviews to renew their visas will also have a negative impact on first-time applicants who need to make appointments to receive employment-authorized non-immigrant visas. Consular resources are unlikely to increase to accommodate increased in-person interviews, and the inevitable result will be longer wait times and delays obtaining visas for valued employees. Both employers and employees alike need to prepare for challenging decisions in coming months on vacation travel, business travel, and emergency travel when doing so requires the traveler to renew existing visas in order to return to the U.S.