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Criminal
Rear View Mirror: Mail Fraud -- Then and Now, by
Ellen Podgor.
Mail fraud today is a statute that prosecutors use to charge many forms of alleged fraudulent conduct. Bank fraud, wire fraud, and health care fraud were all modeled on language used in the mail fraud statute. Its power is further heightened by the fact that it serves as a predicate act for a charge under the Racketeer Influenced and Corrupt Organizations Act (RICO).
Non-Specific.
1 pages. Written:
2008. Added:
9-12-2008.
nacdl.org
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Health Care
Litigation Impact of Never Events, by
Charles Brown , Nicole Mitchell and Krystal Scott.
Efforts to improve both patient safety and quality of healthcare garner wide-spead support. Every person involved in the healthcare industry - from as-needed rotating nurses to a healthcare system's CEO - seeks good patient outcomes. Ostensibly, based on this general goal and an effort to decrease Medicare and Medicaid spending, the Centers for Medicare and Medicaid Services (CMS), along with advocay groups like the National Quality Forum and The Leapfrog Group, have designated certain events as "never events." According to these groups and CMS, never events are those that are preventable and should never occur.
Non-Specific.
7 pages. Written:
2008. Added:
8-31-2008.
Health Lawyers News
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Civil Trial Practice
The Texas Supreme Court Continues to Shape the Law of Voir Dire, by
Sean Reagan.
The Texas Supreme Court continues to shape the law of voir dire with regard to striking a veniremember for cause by holding that a veniremember’s statement that he would hold the plaintiff to a clear and convincing standard of proof in a health care liability case, rather the proper preponderance of the evidence standard, was not grounds for disqualifying the veniremember for cause.
Texas.
2 pages. Written:
2008. Added:
7-11-2008.
Litigation Section
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Health Care
A Prescription For Evaluating Health Care Deals, by
Beth McClain and Kerry Hotopp.
This article provides a brief overview of typical part D contracting relationships, potential fraud risks, and due diligence issues that should be considered in health care deals involving Part D contractors.
Non-Specific.
2 pages. Written:
2007. Added:
7-04-2008.
Buyouts
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Health Care
Litigation Impact of Never Events, by
Charles Brown , Nicole Mitchell and Krystal Scott .
Efforts to improve both patient safety and quality of healthcare garner wide-spead support. Every person involved in the healthcare industry - from as-needed rotating nurses to a healthcare system's CEO - seeks good patient outcomes. Ostensibly, based on this general goal and an effort to decrease Medicare and Medicaid spending, the Centers for Medicare and Medicaid Services (CMS), along with advocay groups like the National Quality Forum and The Leapfrog Group, have designated certain events as "never events." According to these groups and CMS, never events are those that are preventable and should never occur.
Non-Specific.
7 pages. Written:
2008. Added:
7-04-2008.
www.fulbright.com
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Health Care
Business Conduct Guidelines For Health Care, by
Judith A. Waltz, Leeann Habte and Jeannine Y. McGregor.
Overall, a Code of Conduct should generally identify what relationships will be subject to scrutiny, ban inappropriate activities, develop mechanisms to guard against improper influence or conflicts on decision-making, and emphasize transparency in relationships between physicians and industry. As the OIG has noted, a Code of Conduct can function like a constitution. Industry sector Codes and Guidelines provide guidance and models applicable to the risks of a specific sector which should be studied and
adapted for individual entity use.
Non-Specific.
7 pages. Written:
2008. Added:
7-03-2008.
Portfolio Media, Inc.
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Health Care
A Malady in Search of a Cure-The Increase in FCPA Enforcement Actions Against Health-Care Companies, by
Mike Koehler.
This article explores the unique FCPA risks and challenges
for health-care companies doing business or seeking to do business in foreign markets. While the risks and challenges are numerous, they are not unmanageable; the key to FCPA compliance is to adopt effective, comprehensive, and well-communicated FCPA compliance policies and procedures.
Non-Specific.
41 pages. Written:
2008. Added:
7-03-2008.
www.foley.com
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Health Care
Physician Arrangements Get Device Makers In Trouble, by
Judith A. Waltz and Lena Robins.
Device manufacturers, following pharmaceutical manufacturers who in turn followed direct health care providers (such as hospitals and nursing facilities), are now the subject of increased government enforcement activity. An initial enforcement focus is the manufacturers’ relationships with physician thought leaders. Due care must be taken to assure compliance with all laws and regulations regarding such arrangements.
Non-Specific.
4 pages. Written:
2008. Added:
7-03-2008.
Portfolio Media, Inc.
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Health Care
New York Declares War on Medicaid Fraud, by
Francis J. Serbaroli.
Much of our coverage has focused on the efforts of the Justice Department and the Office of Inspector General of the U.S. Department of Health & Human Services (OIG) to combat fraud in federal health care benefit programs such as Medicare. This column has only touched upon some of the
many areas for potential Medicaid fraud liability.
New York.
2 pages. Written:
2007. Added:
4-04-2008.
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Health Care
New Stark Law Regulations are Targeting Physician Compensation, by
Donna S. Clark and Kathleen P. Rubinstein.
New regulations aimed at tightening the prohibition against self-referral could necessitate the overhaul of many routine financial arrangements with physicians. Strategies for avoiding potential sanctions should include a comprehensive assessment of health care services involving physicians.
Non-Specific.
1 pages. Written:
2007. Added:
4-02-2008.
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Health Care
More hospitals are seeking to form affiliations, by
Steven A. Eisenberg.
This article will discuss in greater detail certain drivers behind hospital affiliations, and business and legal considerations that must be carefully examined by both the parties prior to entering into an affiliation so that the affiliation’s potential is maximized.
Non-Specific.
3 pages. Written:
2007. Added:
4-02-2008.
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Health Care
Stark Law Primer (Part 2): The Physician Perspective, by
Andrew B. Wachler.
Stark Law overview, general application in the physician practice setting, The group practice definition, in-office ancillary services exception, physician services exception, 'stand in the shoes', direct relationships, anti-markup providions, and more.
Federal.
10 pages. Written:
2007. Added:
3-19-2008.
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Health Care
Physician Arrangements Get Device Makers In Trouble, by
Judith A. Waltz and Lena Robins.
Device makers, like pharmaceutical manufacturers, have long recognized that their success depends upon making their products known to physicians who will prescribe or recommend the use of their
particular product. An initial enforcement focus is the manufacturers’ relationships with physician thought leaders.
Non-Specific.
4 pages. Written:
2007. Added:
3-13-2008.
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Health Care
In the Middle: Lawyering in Life and Death Situations, by
Carla J.Cox.
When a patient or surrogate decision- maker seeks to continue medical treatment that a hospital and physicians consider futile, healthcare lawyers can find themselves in the middle of a high-stakes dispute.
Non-Specific.
2 pages. Written:
2007. Added:
3-11-2008.
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Health Care
After the Diagnosis…Difficult Issues in Patient Consent, by
Barron P. Bogatto.
This presentation presents an overview of issues Involved in informed consent, advanced directives & surrogate decision makers. Also provides recommended best practices, barriers to “Informed” consent, etc.
Non-Specific.
42 pages. Written:
2007. Added:
3-08-2008.
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Health Care
Another Article on the Surgeon's Liability for Anesthesia Negligence, by
Gene Blumenreich.
Discusses when a surgeon may be liable for negligence on the part of a nurse anesthesiologist.
Non-Specific.
5 pages. Written:
2007. Added:
12-09-2007.
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Health Care
Antitrust Law for Physicians, by
Robert F. Leibenluft.
Survey of issues and cases regarding antitrust law and health care.
Federal.
20 pages. Written:
2005. Added:
11-11-2007.
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Health Care
Valuation Of Co-Management Arrangements: Achieving Operational And Quality Improvements, by
Ann S. Brandt, Ph.D.; Scott M. Safriet, MBA, AVA; and Daryl P. Johnson, MAcc.
The emergence of incentive-based models for the delivery of healthcare services has contributed to the development of a broad range of new opportunities for hospital/physician partnerships.
Federal.
5 pages. Written:
2007. Added:
11-08-2007.
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Health Care
Stark Phase III: Assessment of Valuation Implications, by
Health Care Advisors.
On August 27, 2007, the Centers for Medicare & Medicaid Services (“CMS”) posted Phase III of final regulations concerning the Stark Physician Self-Referral Law. This document is to summarize what HAI believes are the most important valuation issues addressed by CMS in Phase III.
Federal.
3 pages. Written:
2007. Added:
11-08-2007.
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Health Care
Helping Healthcare Organizations Navigate the Regulatory Challenge of ‘Fair Market Value’, by
Michael Podrasky.
Failure to comply with Stark requirements for payment of fair value can result in severe consequences. The real challenge is presented by the various healthcare regulations is determining what is “fair market value”.
select-JD.
2 pages. Written:
2006. Added:
11-08-2007.
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Health Care
The Fair Market Value of Physician On-Call Compensation, by
Daryl P. Johnson and Jody Lehman.
Physicians are growing reluctant to provide on-call availability to the emergency
department without compensation from the hospital. The issue causes hospitals to balance the requirements imposed by
both the Emergency Medical Treatment and Active Labor Act, state licensing regulations, and the Stark legislation and anti-kickback regulations.
Federal.
3 pages. Written:
2006. Added:
11-08-2007.
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Health Care
Making sense of Medicare Set-Asides, by
Matthew L. Garretson.
As Medicare’s role in workers’ compensation and liability settlements evolves, a lack of clear guidance has left many lawyers perplexed. Know how to protect the interests of both your client and Medicare.
Federal.
10 pages. Written:
2006. Added:
11-05-2007.
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Health Care
Overview of Regulatory Issues Affecting Physicians, by
Mark Thompson.
Discusses statutes and regulation affecting physicians and other health care providers.
Non-Specific.
86 pages. Written:
2006. Added:
11-02-2007.
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Health Care
ERISA Preemption and MA Health Care Reform, by
Andy R. Anderson.
Discusses applicability of ERISA preemption of state insurance laws.
Massachusetts.
15 pages. Written:
2007. Added:
10-25-2007.
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Health Care
Managed Care and ERISA: Synopsis and Case Law Review, by
Joan B. Gerbasi.
Managed care organizations (MCOs) have become the predominant health care model in the United States. However, this new role has not implied
increased liability, largely because of The Employee Retirement Income Security Act of 1974 (ERISA). This article provides an overview of ERISA and a review of the important legal cases in this area.
Non-Specific.
8 pages. Written:
2003. Added:
10-25-2007.
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Health Care
Stark II Phase III Rules Released, by
Foley and Lardner.
Changes include: (1) the rules on physician recruitment are relaxed;(2) the “indirect
compensation arrangement” concept is scaled back, and physicians instead will be treated as “standing in the shoes” of their practices, and (3) the “safe harbor” for
determining hourly fair market value compensation for physicians is eliminated.
Federal.
3 pages. Written:
2007. Added:
10-23-2007.
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Health Care
A Primer on the New Physician Self-Referral Exceptions and Anti-Kickback Safe Harbors, by
BlankRome.
New Stark rules create two exceptions in the Physician Self-referral Law, also known as the Stark law,1 and two new safe
harbors in the federal anti-kickback statute2 that protect certain arrangements involving the donation of some forms of electronic health information technology and
services to doctors and other designated healthcare providers.
Federal.
8 pages. Written:
2006. Added:
10-22-2007.
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Health Care
FTC Finds Evanston Hospital Merger Unlawful, But Refuses To Order Spin-Off, by
Arthur N. Lerner and Michael Paddock.
The FTC in declared that Evanston Northwestern Healthcare Corp. violated antitrust laws by substantially lessened competition in violation of Section 7 of the Clayton Act, but declined to order divestiture of the acquired hospital.
Federal.
4 pages. Written:
2007. Added:
10-16-2007.
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Health Care
Conflict of Interest Credentialing, by
Matthew B. Roberts and Joseph M. Kahn.
This article outlines the increasing need for a new hospital strategy, often referred to as conflict of interest credentialing or a modified version of economic credentialing, and discusses the implementation of this strategy.
Non-Specific.
8 pages. Written:
2006. Added:
10-13-2007.
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Health Care
Hospitals, Physicians and ‘Economic Credentialing’, by
Francis J. Serbaroli.
Discusses legalities of new trend towards economic credentialing.
Non-Specific.
3 pages. Written:
2004. Added:
10-13-2007.
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Health Care
Introduction to Health Law, by
Jennifer A. Stiller.
Comprehensive introduction to health law, originally published as a chapter for the course manual for the Pennsylvania Bar
Institute’s March 2006 12th Annual Health Law Institute.
Non-Specific.
80 pages. Written:
2006. Added:
10-01-2007.
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Employment and Labor
The 10 Biggest Legal Mistakes Physicians Make in Their First Employment Contracts, by
Jennifer A. Stiller.
To avoid being burned by their first health care employment contract, physicians should follow three basicrules: Know what they’re getting into, consult a knowledgeable attorney, and get the details down in
writing, clearly stated.
Non-Specific.
5 pages. Written:
2005. Added:
10-01-2007.
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Health Care
What Every Lawyer Needs to Know About the HIPAA Privacy Regulations, by
Jennifer A. Stiller.
New Federal regulations concerning healthcare privacy rights and privacy
practices can impinge upon legal practice in a number of ways. This article is an effort to
highlight what legal practitioners generally need to know for purposes of ordinary legal
practice.
Federal.
5 pages. Written:
2005. Added:
10-01-2007.
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Health Care
Structuring Health Care Joint Ventures to Comply with Federal Fraud & Abuse Statutes, by
Matthew S. Churchill.
Health care joint ventures are complicated legally. Hospitals and physicians face
complicated licensure, certificate of need and other regulatory approval requirements as a
prerequisite to formation.
Federal.
4 pages. Written:
2006. Added:
9-19-2007.
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Health Care
From evidence to methods in integrative mental health care, by
James Lake M.D..
Evolution of health care toward medical pluralism
• Strong historical role of non-conventional medical practices in U.S. health care
• Changing consumer demands related to cultural and demographic trends (Eisenberg 2001; Astin 1998)
• Growing use of CAM reflects an increasingly consumer-driven health care environment
Non-Specific.
79 pages. Written:
2007. Added:
6-19-2007.
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Class Actions
Class Actions in the Health Care Industry, by
Frederick Robinson.
On March 7-8, Fulbright health care partner Rick Robinson spoke at the 2nd National In-House Counsel Forum on Defending & Managing Class Actions and Other Complex Litigation in San Francisco, California. The topic was "Class Actions in the Health Care Industry."
Non-Specific.
20 pages. Written:
2005. Added:
5-01-2007.
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Health Care
Overview of the Current State of HIPAA Enforcement, by
Lynsey Mitchel.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires covered entities, including managed care organizations, to protect the confidentiality of individually identifiable health information. Congress gave the Department of Health and Human Services (HHS) the authority to enforce HIPAA.
Non-Specific.
12 pages. Written:
2006. Added:
5-01-2007.
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Qui Tam and False Claims Act
CME and the Washington Health Care Debates: Demystifying the Policies, Politics, and Press Coverage, by
John F. Kamp, PhD, JD, Judith G. Ribble, PhD.
It’’s about:
FDA Marketing Rules, esp. “off label” promos
HHS IG Investigations of “Illegal”
inducements for government payments
False Claims Act
Anti-kickback Acts
Congressional Inquiries on industry ethics
Non-Specific.
34 pages. Written:
2007. Added:
4-26-2007.
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Qui Tam and False Claims Act
The False Claims Act & Health Care Fraud, by
Latour “LT” Lafferty, Esquire, Sean R. McKenna, AUSA.
• Overview of the False Claims Act (FCA)
• Application of FCA to healthcare industry
• Case study & benefits of compliance
• Awareness & understanding of:
– DOJ’s broad regulatory enforcement authority
– FCA’s context w/in government’s current
enforcement paradigm
Non-Specific.
30 pages. Written:
2007. Added:
4-26-2007.
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Health Care
Stark Enforcement, by
Robert G. Homchick.
Stark prohibits a physician from
referring Medicare patients to an entity
for designated health services for
which Medicare would otherwise pay,
if the physician (or an immediate
family member of the physician) has a
financial relationship with the entity.
Non-Specific.
21 pages. Written:
2005. Added:
4-26-2007.
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Health Care
New Law Curbs Hospital Charges, Collection Actions, by
Francis J. Serbaroli.
This & other cases brought to light, in the
Journal articles & elsewhere, triggered
congressional & legislative hearings. The Internal Revenue Service (IRS) also expanded its review of whether not-for-profit hospitals were earning their tax-exempt status. The prices charged by hospitals vary greatly from facility to facility & from payor to payor
Non-Specific.
3 pages. Written:
2006. Added:
4-18-2007.
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Health Care
The Changing Landscape of Medicaid Fraud Compliance, by
Linda A. Malek & Sam Servello.
There is a fundamental transformation presently occurring in the area of Medicaid fraud detection & enforcement on both federal & state levels. This transformation is necessitated in large part by fact that 41-year-old program funded by both federal & state monies grew to an estimated $300 billion in 2006, $192 billion was funded by fed government.
Non-Specific.
2 pages. Written:
2006. Added:
4-18-2007.
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Health Care
Meet the State’s Brand New Medicaid Fraud Legislation, by
James W. Lytle.
The continued legislative stalemate was met by a new series of headlines in the state’s newspapers, describing a report by federal Centers for Medicare & Medicaid Services (CMS) that was sharply critical of state’s anti-fraud efforts. The CMS report noted sharp drop in staffing along with a decline in the amount of Medicaid audit recoveries.
New York.
3 pages. Written:
2006. Added:
4-18-2007.
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Health Care
Suits against health care employers, by
Michael D. Brophy.
Liability claims against health care facilities,
including hospitals and nursing homes, often include claims of negligent hiring, supervision and/or credentialing in addition to the “traditional” theories of medical malpractice litigation. A second principal theory of liability involves the negligent credentialing of physicians.
Non-Specific.
2 pages. Written:
2005. Added:
3-20-2007.
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Health Care
Confronting Medical Error, by
Michael D. Brophy.
This article does not intend to address the unfortunate, allegations and courtroom testimony related to this issue, as a complete record has not been developed, and the hospital’s defense counsel whose reputation
and integrity were held in high regard prior to the lawsuit has not yet had a fair opportunity to address the allegations against him.
Non-Specific.
2 pages. Written:
2005. Added:
3-20-2007.
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Health Care
The impact of obesity – One Lawyer’s experience, by
Michael D. Brophy.
Medical malpractice cases often reflect a series of events unique to one patient, independent of broader health care issues or a larger patient population. On occasion, however, medico-legal issues of a single case may reflect an overarching social phenomenon, requiring counsel & thecourts to address both factors if a just result is to be achieved.
Non-Specific.
3 pages. Written:
2005. Added:
3-20-2007.
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Health Care
Update on covenants not to compete: Will they survive in the healthcare industry?, by
Katherine Benesch.
Covenants not to compete undergo considerable scrutiny in all industries. Courts around the country are starting to internalize this point of view, and increasingly are balancing the equities of the particular facts and circumstances to determine whether the restrictive covenant should be upheld.
Non-Specific.
1 pages. Written:
2006. Added:
3-20-2007.
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Health Care
Current Perspectives on Healthcare Governance, a Roundtable Discusson of Experts, by
Stuart Silverman.
Discusses use of expert witnesses in civil pre-trial discovery in helath care matters.
Non-Specific.
11 pages. Written:
2007. Added:
3-08-2007.
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