If we have learned nothing else from the federal government, we now have a working definition of the word shortly. That word appeared in the Federal Register on January 4, 2001, as part of the Phase I, Stark II final regulations, when CMS promised that the Phase II regulations would be out "shortly." Three years, two months, and twenty-two days later, the Phase II "interim final" regulations were published.

Timing is everything and it just didn't work for us this time with the Phase II regulations, which were published after this issue of our Health Law Alert was set for publication. On the other hand, the regulations were issued only five days before the Annual American Health Lawyers Association Medicare & Medicaid Payment Institute, at which Craig Holden of our office was scheduled to speak with Vicki Robinson of the Office of Counsel to the Office of Inspector General and Joan Dailey of the Office of General Counsel, CMS Division, regarding the Phase II regulations. Through the efforts of many attorneys in this office, a comprehensive outline and Power Point presentation were developed in time for the program. Those documents are available through our website at www.ober.com, under News, Current Topics, Updates. Of course, the regulations, while helpful in many areas, do not answer all of the questions you have asked us since the effective date of Stark II in January 1995. We will continue to do our best to provide guidance as to the application of this "bright line rule" to the issues each of you face on a daily basis.

Even as we sift through the Phase II regulations, life goes on in the health care industry. This issue of the Health Law Alert addresses a number of significant issues of concern and interest to those who have devoted their careers to the health care delivery system. We present an analysis of the new Medicare Advantage Program, discussions of the application and implementation of the final rule clarifying CMS's EMTALA policies, and reviews of developments relating to Medicare reimbursement and the interpretation and enforcement of the federal health care fraud laws.

We also note a number of issues which may arise as a result of CMS's implementation of a new web-based manual system, not the least of which involves the potential inability to access prior versions of the manual instructions. This development may gain importance in light of litigation which signals a continuing trend that an intent to defraud the federal government under the False Claims Act cannot be proven when billing guidance from the government and its agents is confusing and/or inconsistent.

In the good news department, I am pleased to announce that Craig Holden has been elected Chief Operating Officer of Ober|Kaler. This follows a decision by John Baldwin, our Chief Executive Officer for the last seventeen years, to return to the full time practice of law. John Wolf, our long time Chief Operating Officer, has been elected as our new CEO. We wish Craig well as he balances the obligations of firm management and client service. Additionally, I am pleased to announce that Julie Kass was elected as a shareholder of Ober|Kaler effective January 1, 2004. Also in the good news department, not for us but for them, we congratulate Cathy Martin and Jackie Baratian as they begin a new stage in their careers with the Office of Counsel to the Office of Inspector General.

Finally, as always, your comments and suggestions about current or future articles in the Health Law Alert are important to us and greatly appreciated.

Sandy Teplitzky, Department Chair