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




In this Issue

From the Chair

Guide to Terms

Ober|Kaler in Print

Legislation
New Law Creates National Patient Safety Database

OIG Activity
OIG Focus: Part D, Nursing Homes and CMS

Safe Harbor Proposed for Federally Qualified Health Centers

OIG Advisory Opinions

OIG Cites Antikickback Risks with PAPs Under Part D

Long Term Care
Nursing Staff Data-posting Requirement for Nursing Facilities

Hospitals
Providers Score a Victory in DSH Litigation

PHARMA
CMS Relaxes Marketing Rules to Promote Part D Enrollment

Reimbursement
Hospitals Face Increased Risks for Improper Discharge Coding

Self-Referral
CMS Issues First Stark Advisory Opinion in 7 Years

FCA
More Courts Support FCA Actions Based on Kickbacks

First-to-file Bar Held Inapplicable to Qui Tam Suits

Landmark Clausen Decision Reaffirmed

Enforcement
Proposed Rule Allows Waiver of Exclusion

Litigation/ADR
Erlanger Resolves Scrutiny of its Physician Relationships

Michigan Hospital Settles Voluntary Disclosure of Physician Relationships

Federal Government Settles Investigation of AdvancePCS

Tax
When is a Home Health Agency Not a Home Health Agency?

Antitrust
Full-system Contracting: Business as Usual or Antitrust Time Bomb?

Technology
Stark, Antikickback Protection for E-prescribing, EHR

Physician Focus
More Specificity in Informed Consent

 



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

Lindsay E. Greenwood

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

 

Ober|Kaler in Print

  • Sandy Teplitzky is featured in the inaugural issue of Lawdragon as one of the "500 Leading Lawyers in America." The initial "Lawdragon 500" ranking identifies the best lawyers practicing today in a variety of areas, based on more than 15,000 nominations from clients and peers.


  • Nightingale's Healthcare News named Patrick O'Hare among the "Outstanding Healthcare Transaction Lawyers 2005," a list culled from a national pool of applications submitted by colleagues and peers. Jeff Miles was selected as one of nine "Outstanding Healthcare Antitrust Lawyers 2005." The publication also named Paul W. Kim as being among the nation's "Outstanding Young Healthcare Lawyers -2005."


  • Look for the 2006 Cumulative Supplement to The Law of Tax-Exempt Healthcare Organizations (Wiley, Publisher), which Tom Hyatt coauthored with Bruce R. Hopkins .available spring 2006.


  • Sandy Teplitzky is recognized for "providing outstanding client service" in the fifth annual The BTI Client Service All-Star Team for Law Firms 2006, which lists the 134 attorneys named by Fortune 1000 corporate counsel for their ability to deliver unparalleled client services. Sandy was given the added distinction of being named as one of the two "Truly Outstanding" "Super All-Stars" for being nominated by more than one client.


  • In the November 2005 issue of Washington G-2 Reports' Laboratory Industry Report, Rob Mazer was quoted as a panelist in "Latest in Healthcare Compliance: Key Trends & Outlook" at Washington G-2 Reports' Lab Institute.


  • Len Homer, Sandy Teplitzky, and Bill Mathias' article, "Government Enforcement Influences Policy, Payment and Delivery," appeared in The Legal Media Group Guide to the Leading US Healthcare Lawyers.

  • Ray Shepard was quoted in "Second Creek Detects Cyber Evidence," an article posted February 2, 2006, in the West Virginia newsletter, The State Journal, regarding his client, Second Creek, and the value of the electronic discovery and computer forensics services the technology firm provides.


  • Washington G-2 Reports' G-2 Compliance Report quoted Rob Mazer in the November-December 2005 article, "Wall Street Journal Puts Spotlight on Physician Billing for Lab Services," in which he discusses the antikickback ramifications of discount arrangements between physicians and clinical laboratories.


  • Jeff Miles' article, "Analyzing the Evanston Northwestern Healthcare Initial Decision," appeared in the January 2006 issue of the ABA Antitrust Law Section's Antitrust Health Care Chronicle. The article discusses the FTC's decision holding that Evanston Northwestern Healthcare's acquisition of Highland Park Hospital violated section 7 of the Clayton Act and ordering Evanston to divest the facility.


  • The Physician Advisory's Private Practice Success quoted Rob Mazer in "OIG Scrutinizes Labs that Pay Physicians to Draw Blood," an October 2005 article discussing OIG Advisory Opinion No. 05-08, in which the OIG finds antikickback implications in a laboratory's proposal to provide blood collection supplies at no charge to physicians and also to pay the physicians a draw fee to collect blood samples on which the laboratory would perform tests.


  • Leon Rodriguez was quoted by BNA's Health Law Reporter in the January 19, 2006, article, "OIG Exclusion Cases Call for Good Negotiating Skills, Sale Option for Hospitals," in which he discusses the OIG's proposed exclusion of a Miami hospital and the negotiating room prosecutors often give entities when "it is in the public's best interest that an entity survive."


  • Laboratory Compliance Insider quoted Rob Mazer in the December 2005 article, "New Federal Proposals May Grab Lab Attention," in which he comments on proposed regulations creating an antikickback safe harbor and a Stark exception that would protect arrangements designed to promote electronic prescribing by providing technology at no charge to referral sources.


  • Tom Hyatt was quoted by BNA's Health Law Reporter in the November 3, 2005, article, "IRS Predicts Focus on Nonprofit Hospitals In Letter, Initiatives Plan Issued for FY 2006," in which he discusses the IRS's work plan for fiscal year 2006 and the aggressive posture the IRS has taken toward nonprofit hospital oversight and executive compensation.


  • BNA's Health Law Reporter quoted Sandy Teplitzky in the March 21, 2005, article, "Fraud and Abuse Commands Premier Spot Among Key Health Law Issues," in which he comments on anticipated trends in qui tam cases, in OIG prosecutions and investigations, and in the development of regulations and industry guidance.


  • Rob Mazer was quoted by the August 2005 Laboratory Compliance Insider in "Ask the OIG," discussing the OIG's June 2005 advisory opinion (No. 05- 08) rejecting a laboratory's proposal to provide blood collection supplies at no charge to physicians and also to pay the physicians a draw fee to collect blood samples on which the laboratory would perform tests.


  • HispanicBusiness.com quoted Leon Rodriguez in "Hispanic Leaders Speak out Against Alito," a January 19, 2006, article in which Leon, as spokesman for Hispanics for a Fair Judiciary, warned that minority communities would experience diminished protection from the judicial system with the confirmation of Samuel Alito to the Supreme Court.

and elsewhere.

  • Sandy Teplitzky has been selected for the Maryland Leadership in Law award, sponsored by The Daily Record, in recognition of his "outstanding professional accomplishment, community service, and mentoring of future professional and community leaders."


  • John Lessner is teaching Health Law Seminar: Long Term Care and the Law at University of Maryland School of Law.


  • Tom Coons co-chaired the District of Columbia Bar Association's Introduction to Health Law Series. Carel Hedlund and John Lessner copresented "Medicare Parts A, B, C and D," while Tom Hyatt copresented "Key Antitrust and Tax Issues."


  • Craig Holden co-chaired the AHLA's Fraud & Compliance Forum and presented the "Fraud and Abuse Primer." Julie Kass copresented "Advanced Stark."


  • Jim Wieland was appointed to the Maryland legislature's Task Force to Study Electronic Health Records, an advisory panel that will make recommendations to Maryland lawmakers on electronic medical records policy and issues related to Regional Health Information Organizations.


  • Tom Hyatt is serving as counsel to the All Hazards Consortium, a nonprofit consortium designed to promote cooperation on homeland security issues, in response to a direct solicitation for Ober|Kaler's legal advice from Maryland's Homeland Security Director, Dennis Schrader.


  • Leon Rodriguez has been appointed to the boards of Primary Care Coalition of Montgomery County (Maryland), whose mission is to provide access to high quality primary and specialty care services to the county's uninsured and underserved population; and of CASA de Maryland, whose mission is to improve the quality of life, social and economic well-being of the Latino community.


  • Howard Sollins presented "New Developments for Physicians and Non- Physician Practitioners in LTC Facilities" at the AHLA's Long Term Care and the Law program.


  • Ray Shepard is handling a pro bono post-conviction death penalty case arising out of a Mississippi state court, in which a man was convicted of murder based partially on the findings of a forensic anthropologist.


  • Paul W. Kim presented "ASCs and Medicare" at Conquer ASC Billing, Coding & Compliance Challenges, a conference sponsored by ICD-9/CPT Coding Pro.


  • Sandy Teplitzky presented "Stark II Phase II" at the AHLA's Physicians and Physician Organizations Law Institute and the Hospitals and Health Systems Law Institute.


  • Tom Hyatt made a presentation at the Exempt Organizations conference sponsored by the New York State Society of CPAs.


  • Rob Mazer was a panelist in "Latest in Healthcare Compliance: Key Trends & Outlook" at Washington G-2 Reports' Lab Institute.


  • At the AHLA's Institute on Medicare and Medicaid Payment Issues, Craig Holden copresented "Advanced Stark"; Carel Hedlund copresented "Wage Index and Urban Reclassification Update"; and Paul W. Kim presented "Non-Physician Practitioner Issues."


  • At the AHLA's Tax Issues in Healthcare Organizations program, Tom Hyatt copresented "Board Policy Best Practices: Compensation, Expenses, and Conflicts of Interest."

Copyright© 2006, Ober, Kaler, Grimes & Shriver