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Ober|Kaler Health Law Alert - Fall/Winter 2003




In this Issue

From the Chair

Welcome

Guide to Terms

Ober|Kaler in Print

OIG Activity
Contractual Joint Ventures Scrutinized Anew

OIG Tackles Discount Issues

Beware of Misuse of "Medicare" in Marketing Practices

OIG States Position on DME Telemarketing

OIG Advisory Opinions

CMS Developments
Final Outlier Rule to Curb Abuses

Proposed Medicare Enrollment Rule

Group Therapy: Seeing Through the Murky Water?

Long Term Care
Security Issues for Long Term Care Providers

Pharma
NPIA Exempts Resales to Hospital Workers

Compliance
Compliance Guidance for Pharmaceutical Manufacturers

Boards' Role in Compliance Clarified

Privacy
Final HIPAA Security Standards

Reimbursement
Earlier Wage Index Deadlines in Place

Provider-based Rules Take Effect

FCA
"Person" Under FCA Varies - Even in Same Case

Contractual Remedy Precludes FCA Liability

Courts Interpret "Public Disclosure" Bar of Qui Tam Suits

Litigation
Hospital Pleads Guilty After Ignoring Fraud

"Lick and Stick" Allegations Yield Nation's Largest Medicaid Fraud Settlements

 

Ober|Kaler in Print

  • The May 2003 APC Payment Insider Online quoted Tom Coons in "Know Medicare's Outpatient Requirements for Provider-based Facilities: Be Ready for the Approaching Deadline," an article discussing CMS's revised rules for determining provider-based status.

  • Patrick O'Hare's article, "OIG Targets Contractual Joint Ventures," was published in the September 2003 issue of Health Care Financial Management.

  • Sandy Teplitzky was quoted in "MD Volunteer Lawyers Services Broadens Vision," an article appearing in the March 15, 2003, issue of The Daily Record, in which he comments on the legal work that Ober|Kaler donated to the volunteer lawyers organization and MEDBANK of Maryland to set up a mail-order pharmacy for uninsured individuals without prescription coverage. Sandy told The Daily Record that he was pleased that the project "merged our law firm's commitment for serving those in need with our specific expertise in the health law area."

  • Rob Mazer was quoted in "Tips on Billing for Tests Sent Out to a Reference Lab," an article appearing in the September 2003 Laboratory Industry Report, in which he offers guidance regarding establishing the appropriate billing rate for Medicare claims for tests conducted by reference labs.

  • Harry Silver was quoted by the October 2003 Laboratory Compliance Insider in "Voluntary Disclosure May Not Prevent Whistleblower Lawsuit," an article in which he discusses contradictory court cases addressing the definition of public disclosure, and the steps providers should take in making voluntary disclosures to improve the chances that the disclosures will be considered public.

  • Jerry Oppel's article, "When Duty Calls: Employer Obligations Under USERRA," was published in the July 2003 issue of Healthcare Purchasing News.

  • Sandy Teplitzky's article, "Ober|Kaler Prompts OIG Response to Medical Malpractice Insurance Crisis," was published in the September 2003 Health Lawyers Weekly.

  • The September 29, 2003, G-2 National Intelligence Report quoted Rob Mazer in "OIG Plan Threatens Upheaval in Lab Test Pricing," an article in which he discusses the effects that the clinical laboratory industry may feel from the OIG's proposed rule addressing its exclusion authority with respect to the statutory prohibition against discriminatory billing.

  • The June 27 - July 3, 2003, Baltimore Business Journal quoted Julie Kass in "Just What the Doctor Ordered," an article discussing the shift that has been taking place in relationships between physicians and pharmaceutical companies since the issuance of sales and marketing guidelines in PhRMA's voluntary marketing code and the OIG's compliance program guidance for pharmaceutical manufacturers.

  • Bill Mathias was named among the Outstanding Young Healthcare Lawyers-2003 by the September/October 2003 Nightingale Healthcare News for his role in assisting in the development of a HIPAA compliance strategy for one of the nation's largest home health providers, authoring a successful OIG advisory opinion request on behalf of a major pharmaceutical company, and assisting in the formulation of an ASC-development strategy for a major for-profit health care company.

  • BNA's Health Law Reporter quoted Sandy Teplitzky in "Attorneys React to OIG Advisory Bulletin on Contractual Joint Ventures in Health Care," a May 22, 2003, article discussing the affect that the OIG's special advisory bulletin can be expected to have on hospital arrangements.

  • Rob Mazer was quoted by the August 2003 Laboratory Compliance Insider in "Point to Recent CMS Memoranda When Reminding Physicians to Give Diagnostic Information," in which he discusses the key points that laboratories should make when stressing to referring physicians the importance of providing diagnostic information with test orders, and in "Ask the Insider," in which he answers a reader question regarding the appropriateness of a lower fee schedule for a community-based hospital's laboratory outreach program.

  • The May 2003 G-2 Compliance Report quoted Sandy Teplitzky in "Corporate Compliance Resource May Aid in Shielding Directors from Liability," discussing the advantages the OIG and AHLA's Corporate Responsibility and Corporate Compliance Resource can provide for boards of directors that address the questions raised in the guidance.

  • Health Lawyers Weekly published Marty Rogers' article, "Criminalization of Nursing Home Abuse and Neglect," and Howard Sollins' article, "OIG Issues Ambulance Compliance Guidance," in its June 2003 issue.

  • Rob Mazer was quoted in "OIG Proposal Could Limit Lab Discounts," an article appearing in the October 2003 G-2 Compliance Report discussing the OIG's proposed rule addressing its exclusion authority with respect to the discriminatory pricing prohibition.

  • Sandy Teplitzky was quoted by the Chattanooga Times Free Press in the April 28, 2003, article, "Erlanger Investigation Could End Soon or Drag on for Years," in which he discusses the typical pattern of federal health care investigations in relation to the government's investigation of Erlanger Health System, and in the June 1, 2003, article, "Erlanger Legal Fees Escalate," in which he comments on the potential legal fees involved in federal health care investigations.

  • The October 10, 2003, G-2 National Intelligence Report quoted Rob Mazer in "Backlash Building over 'Substantially in Excess' Proposal," an article discussing industry reaction to the OIG's proposed rule regarding the circumstances under which a provider could be excluded from the Medicare and Medicaid programs under the discriminatory pricing prohibition.

  • Jerry Oppel and Jesse Hammock's article, "Ergonomic Guidelines for Nursing Homes," was published in the October 3, 2003, issue of Health Lawyers Weekly.

and elsewhere.

  • Sandy Teplitzky co-presented "Civil Monetary Penalties and Other Administrative Sanctions: OIG and Industry Perspectives" with Vicki Robinson, Chief of the OIG's Industry Guidance Branch, at the AHLA Annual Meeting and In-House Counsel Program in San Antonio.

  • At the AHLA Fraud and Compliance Forum, Craig Holden presented a "Fraud and Abuse Primer," and Julie Kass co-presented a case study on "Stark Legal and Practical Issues Arising from Artic's High Tech Medical Mall [hypothetical] and Other Stark Hot Topics."

  • Leon Rodriguez delivered a presentation entitled "Preventing Fraud and Abuse Issues to Minimize Regulatory Risk and Limit Liability" at the Prevent Liability in Clinical Research conference sponsored by NetRegulus in Philadelphia.

  • Tom Hyatt presented "Legal Ethics: Governance Reforms for Nonprofit Organizations: Sarbanes-Oxley and Beyond" at the AHLA Tax Issues for Healthcare Organizations program.

  • June 30, 2003, marked Sandy Teplitzky's completion of a second term on the Baltimore County School Board, giving him a total of almost 10 years of service as a board member of the 24th largest school district in the nation.

  • Jeff Miles co-presented "Avoiding Anti-Trust Issues" at the Fourth Annual Conference on Healthcare Transactions sponsored by Renaissance American Management, Inc. and Beard Group.

  • Tom Coons will present "Medicare and Medicaid Reimbursement Issues" at the AHLA Fundamentals of Health Law program in Chicago.

  • At the Antitrust in Healthcare program sponsored by the AHLA and the ABA Health Law Section, Section of Antitrust Law, Jeff Miles co-presented "Healthcare Market Power" and Carol McCarthy co-presented "Fraud and Abuse v. Antitrust."

  • Sandy Teplitzky presented "Fraud and Abuse Update," at the 15th Annual Health Law Forum, sponsored by the Tennessee Bar Association's Health Law Section and TennBarU.

  • At the Health Facilities Association of Maryland 55th Annual Convention and Trade Show, John Lessner co-presented "Integrating Quality Assurance and Corporate Compliance: Reducing Your Liability Exposure"; Leon Rodriguez and Howard Sollins co-presented "Issues in the Care of Non-Geriatric Patients of Nursing Facilities"; and Howard Sollins co-presented "Legal Update: Survey and Certification Process."

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