ABA Health eSource - Your link to the ABA's Health Law Section
July 2009 Volume 5 Number 11
Health Law Section News  July 1, 2009

July 15, 2009
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Interest Group Communication Highlights

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Patient Safety Handbook

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Chair's Column
By Vickie Yates Brown, Frost Brown Todd LLC, Louisville, KY

The ABA Annual meeting will begin later this month. Besides continuing education sessions, section and committee meetings and numerous social functions, an important component of the meeting will be the meeting of the House of Delegates. One of the functions of the House of Delegates is to establish ABA policy on issues brought forward to the House.

The Health Law Section has a Report and Recommendation which will be considered by the House concerning the establishment of guidelines for the pharmaceutical industry and conflicts of interest. We have sent the Report and Recommendation to other groups in the ABA and look forward to their co-sponsorship.

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A Brave New Word: Recent False Claims Act Amendments And Their Impact On Health Care Entities
By Robert T. Rhoad, Esq., and Matthew T. Fornataro, Esq., Crowell & Moring LLP, Washington, DC

In late May, President Obama signed into law the Fraud Enforcement and Recovery Act of 2009 (“FERA”), which significantly amends the civil False Claims Act (“FCA” or “Act”), a principal tool in the Government’s efforts to fight fraudulent claims for payment made to the Government. FERA greatly expands the potential for liability under the FCA, and it is the first major amendment to that Act in over 20 years. The FCA amendments are in large part a reaction to recent court decisions, including the Supreme Court’s decision in Allison Engine Co. v. United States ex rel. Sanders, in which the Court held the Government was required to “prove that the defendant intended that the false record or statement be material to the Government's decision to pay or approve the false claim.”

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Changes to the “Status” Quo: CMS Issues Clarifications Regarding Observation Services and Condition Code 44
By William Chaltraw, Jr., Fishman, Larsen, Goldring and Zeitler, Partner, Fresno, CA, and Claire Castles, J.D., LL.M., Law Offices of Dennis M. Lynch, Attorney, Visalia, CA

For years hospitals and physicians have struggled with properly determining and documenting a patient’s status as either an inpatient admission or an outpatient observation. Although some may consider patient status merely a billing characterization and not a reflection on a patient’s medical condition, failing to properly distinguish between the two in a timely manner can have a significant impact on a provider’s reimbursement. CMS continues to focus on one-day length of stay issues and medical necessity for inpatient admissions. During the period of the Recovery Audit Contractor pilot program, one-day length of stay admissions were a priority in the demonstration states. CMS continues to provide clarification to assist providers in better understanding its expectations regarding such short stay admissions.

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Asserting The Government’s Duty To Preserve In False Claims Act Litigation: Abbott Laboratories Seeks Sanctions For DOJ Spoliation In Health Care Fraud Case
By Robert T. Rhoad, Esq., and Matthew T. Fornataro, Esq., Crowell & Moring LLP, Washington, DC

On June 4, 2009, Abbott Laboratories Inc. (“Abbott”) filed a motion seeking sanctions against the U.S. Department of Justice (“DOJ”), accusing it of spoliation of evidence “on a massive scale” in In re Pharmaceutical Industry Average Wholesale Price Litigation, Civ. No. 01-cv-12257 (D.Mass.). Abbott is one of dozens of drug manufacturers defending themselves against claims that they defrauded Medicare and Medicaid by marketing their drugs to pharmacies and health care providers below the prices set for Government rebates, in violation of the False Claims Act, the federal health care program Anti-kickback Statute, and various state laws. The DOJ claims that the defendants engaged in misconduct by marketing the “spread” of certain drugs, which is the difference between the official and actual prices charged by the companies, thus overstating published prices by up to 1,000% -- with an intent to defraud Medicare and Medicaid.

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Medical-Legal Partnerships:
Practicing Preventative Law

By Kelly A. Scott, Staff Attorney, ABA Center for Pro Bono, Medical-Legal Partnerships Pro Bono Support Project, Chicago, IL

Our health is greatly affected by social circumstances. No amount of medication will help a child that suffers from chronic asthma when she continues to live in an apartment overgrown with mold. Nor will a person be able to stay healthy without access to healthcare or living in a home without heat. To deal with these issues doctors and lawyers have come together for the greater good by creating an innovative legal services delivery model that continues to gain momentum; the medical-legal partnership. A medical-legal partnership is an interdisciplinary approach to solving health issues that are rooted in social circumstances and can be alleviated with the intervention of a lawyer on the medical team. Two professions, sometimes at odds, work collectively to ensure the best outcomes for patients and their families.

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Payment & Reimbursement Interest Group

The Payment & Reimbursement Interest Group follows trends, changes and practices in reimbursement, billing and collection under Medicare, Medicaid and other federal and state healthcare programs.

The IG is led by Chair Holley Thomas Lutz, Sonnenschein Nath & Rosenthal LLP, Washington, DC and Vice-Chairs Claire Castles, Law Offices of Dennis M. Lynch, Visalia, CA; Angela Lai, California Department of Managed Health Care, Sacramento, CA; Jeffrey P. Stodghill, Frost Brown Todd, Louisville, KY and Andrew B. Wachler, Wachler & Associates, Royal Oak, MI.

If you would like to join the Interest Group, continue by clicking the following link: Health Law Section IG Sign-up Form.


ABA eSource Editorial Board

The ABA Health eSource Editorial Board is led by Chair Lisa Genecov, Locke Lord Bissell and Liddell LLP, Dallas, TX and editorial board members Michael E. Clark, Hamel Bowers & Clark LLP, Houston, TX; Adrienne Dresevic, The Health Law Partners, PC, Southfield, MI; Marla Durben Hirsch, Potomac, MD and Conrad Meyer, Chaffe McCall, LLP, New Orleans, LA.


Do you want to communicate your ideas to thousands of other members? To contribute a newsletter article on a health law topic, send us your ideas to Simeon.Carson@americanbar.org
The opinions expressed are those of the authors and shall not be construed to represent the policies or positions of the ABA or the ABA Health Law Section.
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