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Health Law Alert
2010 Volume 1
From the Chair
As we prepared to go to print with this issue of the Health Law Alert, the United States Senate voted to approve its version of health care reform. The politics surrounding this effort have been extraordinary, and candidly, disturbing. It appears to me that much of the discussion is less about health care policy than it is about pure politics. Although I have my personal perspective, I am certain that all of us, irrespective of the side of the aisle we support, or the thoughts we have regarding needed health care reform, must be distressed at the tone, tenor, and volume of the “debate.” Notwithstanding this concern, however, we remain ready, willing, and able to assist the health care industry in understanding any new rules and ensuring that the beneficiaries of that health care are well served.
While the “inside the beltway” drama plays out, the rest of the world continues, and this issue of the Health Law Alert addresses a number of issues that we believe will be of interest to you, including a recent development in the longstanding debate over economic credentialing, and expanded liability under the federal False Claims Act.
Click to continue...Expanded Liability Under the False Claims Act
The recently enacted Fraud Enforcement and Recovery Act of 2009 (FERA), Pub. L. No. 111-21, 123 Stat. 1617, included several important amendments to the False Claims Act. 31 U.S.C. §§ 3729–3733. While those amendments affect all contractors interacting with the federal government, this article focuses on the manner in which the FCA amendments are most likely to impact the health care industry. As a general matter, it is safe to declare that the amended FCA exposes health care providers to even greater potential liability for false claims than heretofore existed under the pre-FERA version of the FCA.
Click to continue...Supreme Court: Appeal Deadline Applies in FCA Action Even If Government Has Not Intervened
By: Chelsea S. Rice*
The Supreme Court issued a unanimous decision on June 8, 2009, holding that when the United States has declined to intervene in a privately initiated FCA action, it is not a “party” to the litigation; thus, the 30-day time limit for filing a notice of appeal applies.
Click to continue...Unfiled Discovery Documents in Contract Action Not Public Disclosure Under FCA
By: Chelsea S. Rice*
On May 12, 2009, the United States District Court for the Southern District of Ohio, Western Division, denied a motion to dismiss an FCA qui tam action after finding that unfiled discovery materials in a prior breach of contract case did not constitute a public disclosure that would bar the relator from bringing his claim under the FCA.
Click to continue...HITECH Act Breach Notification Rule Now in Effect, But No Sanctions Apply Until 2010
By: James B. Wieland
The HHS Office for Civil Rights (the OCR) published its interim final rule for Breach Notification for Unsecured Protected Health Information, implementing section 13402 of the Health Information Technology for Economic and Clinical Health Act (HITECH Act), in the Federal Register on August 24, 2009. 74 Fed. Reg. 42,740 (Aug. 24, 2009). As an interim final rule, the regulation is subject to a 60-day comment period, and comments received may result in further changes or clarifications. Highlights of the PHI Breach Notification Rule and the OCR’s comments and analysis that accompanied it are discussed below. [For a more complete overview of the HITECH Act itself, including the statutory provisions governing breach notification, see “The Health Information Technology for Economic and Clinical Health Act: Congress Includes Sweeping Expansion of HIPAA and Data Breach Notification Requirements in the Stimulus Bill,” which appeared in Ober|Kaler’s Healthcare Information Privacy, Security and Technology Bulletin.]
The HITECH Act requires notification to individuals in the event of a breach of the security or the privacy of unsecured protected health information. Unsecured protected health information is defined in the Act as protected health information that is not secured through a technology or methodology specified in guidance by HHS.
Click to continue...Arkansas Court Enjoins Hospital's Use of Economic Credentialing Policy
By: John J. Eller
Earlier this year, an Arkansas trial court issued a permanent injunction enjoining a nonprofit hospital, Baptist Health, from enforcing its economic credentialing policy. The policy mandated the denial of staff privileges to any physician who, through himself or his immediate family member “directly or indirectly, acquires or holds an ownership or investment interest in a competing hospital.”
Baptist Health enforced its policy against a group of cardiologists, who, through membership in Little Rock Cardiology Clinic, held a 14.5 percent interest in a competing private acute care cardiology hospital, Arkansas Heart Hospital. The physicians subsequently sued the hospital alleging, among other claims, that the policy violated the federal antikickback statute and the Arkansas Deceptive Trade Practices Act, and that the policy tortiously interfered with the physicians’ contractual relationship with their patients. The trial court issued a preliminary injunction, and defendants appealed.
Click to continue...New York Medicaid Makes Compliance Program Mandatory
Did you have $500,000 in revenues from NY Medicaid in the past 12 months?
If the answer is yes, you were required to have a compliance program in effect as of October 1st and must submit a signed certification by December 1st.
Earlier this year, the New York State Office of the Medicaid Inspector General (OMIG) adopted final regulations requiring compliance programs for individuals and entities that either order from the NY Medicaid program, submit claims on behalf of themselves or others, expect to claim, or expect to receive $500,000 or more in NY Medicaid funds in any 12-month period. NY is the first state Medicaid program to make compliance programs mandatory.
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