Ober, Kaler, Grimes & Shriver, A Professional Corporation  
Ober|Kaler Health Law Alert - Fall 2006




In this Issue

From the Chair

Guide to Terms

Congratulations

Ober|Kaler in Print

Legislation
DRA Changes in Medicaid Long-Term Care Eligibility

DRA Efforts to Combat Medicaid Fraud

OIG Activity
OIG Advisory Opinions

Open Letter Promotes Compliance, Self-disclosure

Hospitals
Two Major DSH Decisions

DME
Power Mobility Devices Subject to New Payment Rules

Durable Medical Equipment Suppliers Beware

Compliance
Compliance Guidance for PHS Research Award Recipients

Privacy
HHS Recognizes Value of Measured Approach to Enforcement in HIPAA Final Rule

Reimbursement
CMS Publishes Inherent Reasonableness Final Rule

FCA
Bisig Widens Avenues of Recovery for FCA Relators

Enforcement
Miami Hospital Excluded for Noncompliance with CIA

Litigation/ADR
Florida Fraud Statute Scrutinzed Anew on Appeal

Attorney Fee Recovery Under EAJA

Antitrust
Efficiencies and Justifications for Physician Network Joint Contracting

Employment
Recent Developments Affecting Employee Benefit Plans

 



Health Law Group

Sanford V. Teplitzky, Chair

Melinda B. Antalek

William E. Berlin

Christi J. Braun

Marc K. Cohen

Thomas W. Coons

John J. Eller

Joshua J. Freemire

Leslie Demaree Goldsmith

Carel T. Hedlund

S. Craig Holden

Leonard C. Homer

Thomas K. Hyatt

Julie E. Kass

Paul W. Kim

John F. Lessner

William T. Mathias

Robert E. Mazer

Carol M. McCarthy, Ph.D.

John J. Miles

Christine M. Morse

Patrick K. O'Hare

Leon Rodriguez

Martha Purcell Rogers

Laurence B. Russell

Donna J. Senft

Ray M. Shepard

Steven R. Smith

Howard L. Sollins

E. John Steren

Chiarra-May Stratton

Emily H. Wein

James B. Wieland

Editorial Assistant:
Michele Vicente, Paralegal

 

From the Chair

Sandy Teplitzky, Chair of Ober|Kaler's Health Law GroupAs I sit to write this message, it occurs to me that we often have misconceptions about the apparent ease with which others carry out their roles, both professional and personal. For instance, some might be led to believe that chairing a group of top-notch health law attorneys is a job that can practically be automated. But somebody has to offer these insights "From the Chair." Actually, I do have a point here, and it is this: The individuals working in the health care field face a myriad of challenges that could serve to threaten their dedication to the goal of their profession — caring for patients. Yet their patients see only "business as usual," typically unaware of the myriad of demands placed on these providers by legal, regulatory, administrative, and insurance constraints. Our goal, through the Health Law Alert, is to maintain business as usual for our friends and clients.

With this issue of the Health Law Alert, we cover developments relevant to a variety of health care providers. Medicaid fraud initiatives under the DRA will have an impact on the industry as a whole, while long term care providers will be most interested in reading about DRA changes specific to Medicaid long term care eligibility. The developments discussed here regarding new payment rules for power mobility devices and the implications for practitioners who want to stock certain DME and orthotics at their practice locations will be of particular interest to DME providers. We also present articles relevant to physician network joint contracting, HHS's approach to HIPAA enforcement, employee benefits, Medicare reimbursement, and OIG compliance program guidance.

The intricacies of the federal False Claims Act continue to generate case law that drives the direction of qui tam recoveries. The Bisig decision discussed in this issue no doubt will broaden the sights of relators looking for substantial financial returns. Meanwhile, the constitutionality of Florida's fraud statutes continues to be argued in Florida courts; developments in those cases are discussed in this issue.

I have commented before on this firm's view (both positive and negative) of the OIG's voluntary disclosure program and the alternative the program can represent for certain providers who discover potential violations of the law. In this issue, I discuss the OIG's most recent open letter to health care providers and the insight it offers with respect to the OIG's current approach to the self-disclosure program, corporate integrity agreements, and the value of compliance programs. Understanding the relevance of these issues can prove invaluable in the face of an investigation or disclosure of possible legal violations. Indeed, the experience of one Miami hospital, as discussed in this issue, demonstrates the seriousness with which the OIG views a provider's commitment to compliance with its Corporate Integrity Agreement.

Yet again, congratulations are due to the attorneys in the Ober|Kaler Health Law Practice Group for recognition given them for their work in health care law. In lists culled from a national pool of applications submitted by colleagues and peers, Nightingale's Healthcare News has named Jim Wieland among ten "Outstanding Physician Practice Lawyers 2006," and Julie Kass as one of twelve "Outstanding Fraud and Compliance Lawyers 2006." The 2007 edition of The Best Lawyers in America acknowledges twenty Ober|Kaler attorneys for their depth of experience and knowledge, including eight from the Health Law Practice Group: Craig Holden, Len Homer, Tom Hyatt, Patrick O'Hare, Howard Sollins, and myself (all in Health Care Law); Marty Rogers (Health Care Law, White Collar Criminal Defense); and Jeff Miles (Antitrust Law). Finally, the entire department has tied for first place, for the third year in a row, in a peer-based ranking of Maryland health law practices according to a survey released in Chambers USA, America's Leading Business Lawyers.

Congratulations are also due to Donna Senft, who passed the Virginia Bar Exam in April. Donna started with Ober|Kaler as a law clerk and has been providing invaluable services to our clients for almost eight years.

I am also pleased to welcome a new addition to the Ober|Kaler Health Law Group. Congratulations go out to Chiarra-May and Grayson Stratton on the birth of their daughter Jorja-Tei Elayda on April 25.

Finally, I encourage you to send us your comments and suggestions with respect to the Health Law Alert. This publication is an extension of the legal services we strive to deliver, and as such, we hope it offers value to our friends and clients who receive it. Your thoughts and constructive comments help us to understand your needs, thereby enabling us to improve and expand our services to you.

Copyright© 2006, Ober, Kaler, Grimes & Shriver