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

As I reflect on all the Section has accomplished this past year, I am writing my last column as your Chair and want to share some thoughts on the state of the Section. I have been honored to work with many dedicated and thoughtful Section leaders and members who participated in so many of the Section’s projects and initiatives. On the staff side, we said farewell to Adam Bielawski in November 2008 and welcomed Simeon Carson as the new Publishing, Technology and Membership Manager in January 2009. Simeon joins our dedicated staff, Administrative Assistant Abbey Palagi, Associate Director Sena Leach and Director Jill Peña.

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Avoiding Valuation of Referrals - Interpreting OIG Advisory Opinion 09-09
By James Pinna, Hunton & Williams LLP, Richmond, VA

Once again, this summer, the Office of Inspector General (“OIG”) has waded into the subject of ambulatory surgery center (“ASC”) transactions and disproportionate returns on invested capital. As many may remember, the OIG issued the somewhat controversial Advisory Opinion 07-05 in the summer of 2007, taking the surprising position that a hospital’s purchase at fair market value of ownership interests in an existing ASC from certain physician owners could potentially generate prohibited remuneration under the federal Anti-Kickback Statute (the “AKS” and that the OIG could potentially impose administrative sanctions on such transaction. This result turned in part on the fact that the hospital and the physicians would not receive investment returns directly proportional to the dollar amount of their invested capital (although returns would be directly proportional to percentage ownership interests).

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No More Free Lunch: Understanding the New Massachusetts Pharmaceutical and Medical Device Marketing Law and Regulations
By Colin J. Zick, Foley Hoag LLP, Boston, Massachusetts

“You have to learn the rules of the game. And then you have to play better than anyone else.” -Albert Einstein

In 2008, the Massachusetts Legislature passed an omnibus bill designed to reduce health care costs and increase health care quality in the Commonwealth. One key element of this legislation sought to address the utilization of prescription drugs and medical devices by regulating industry-physician interactions. In so doing, Massachusetts joined the District of Columbia and at least six other states in regulating the relationships between the pharmaceutical and medical device industries and physicians.

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FCA Amendments Broaden Government’s Investigative Power
By Brian A. Hill and Josephine Nelson Harriott,
Miller & Chevalier, Washington, DC

The Fraud Enforcement and Recovery Act of 2009 (“FERA”), signed into law by President Obama on May 20, significantly expanded the scope of conduct for which persons and organizations can be liable under the False Claims Act (“FCA”). In addition to attaching FCA liability to overpayments, Congress acted to explicitly overturn court decisions that excluded from FCA liability claims that were paid by grantees or contractors from money provided by the U.S. Government, and claims made directly to the government that were paid from funds administered by the government. In addition to expanding the types of prohibited conduct, FERA also broadened the government’s FCA investigative powers in a way that may fundamentally change the way FCA cases develop.

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Healthcare Fraud & Compliance Interest Group

The Healthcare Fraud & Compliance Interest Group addresses topical, cutting edge issues which are the focus of fraud and abuse prevention, investigations and prosecutions.

The IG is led by Chair Carol A. Poindexter, Shook, Hardy & Bacon LLP, Kansas City, MO and Vice-Chairs Robert G Anderson, Butler Snow, Jackson, MS; Glenn M Jones, Fulbright & Jaworski L.L.P., Washington D.C. and Davis W. Turner, Vanguard Health Systems, Inc., Nashville, TN..

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.