ABA Health eSource - Your link to the ABA's Health Law Section
December 2011 Volume 8 Number 4
Health Law Section NewsDecember 15, 2011
January 12, 2012
Navigating the Choppy Waters of the SRDP: Lessons Learned One Year Later
(CLE Webinar & Teleconference)

January 17, 2012
Severance and Other Termination Pay Arrangements: Planning & Executing Defensible Goodbyes
(CLE Webinar & Teleconference)

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The ACOs Are Coming: What You Must Know About the Accountable Care Organizations Final Rules
(Audio-CD)

Online Course!
The Final ACO Regulations: Is Participation Worth a Second Look?
Part 1: Quality of Care, Antifraud, and Antitrust

Part 2: Assignment of Beneficiaries, Risk, Structure and Governance, and Tax Issues
(Audio-CD)

Health Law Highlights

Health Law News

ACO Resources & News

HHS Office of Inspector General (OIG)

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CDC Public Health Law News

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Chair's Column: DRUGS
By David H. Johnson, Bannerman & Johnson, P.A.,
Albuquerque, NM

No, I am not referring to the song by Talking Heads, nor am I seeking to conjure the spirits of Jimi, Janis or Hunter S. Rather, recent events have brought into focus the degree to which drugs, and especially the abuse of prescription drugs used to relieve pain, have become part of the array of issues that health lawyers must address when counseling their clients. This realization began, strangely enough, at the Section’s Washington Healthcare Summit (more on that event in a future column). According to the attendees’ reviews, the most popular event at the Summit was a lunchtime presentation by Joseph Rannazzisi of the Drug Enforcement Administration’s (“DEA”) Office of Drug Diversion Control.

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This edition of eSource is brought to you by the Healthcare Facility Operations Interest Group.

 

Quickie Union Elections With Less Supervision:
Let The Games Begin

By Gregory B. Robertson and Ryan A. Glasgow,
Hunton & Williams LLP, Richmond, VA

There are few industries that have been or will continue to be affected by the National Labor Relations Board’s (“NLRB”) recent pro-labor composition than the healthcare industry. These developments include changes in rules and precedent specifically applicable to employers in the healthcare arena, and other changes that are more general in nature. As a result of these changes, it could become increasingly easier for unions to organize employees in the healthcare industry. This article focuses on the convergence of two potential developments – the likely change in the definition of “supervisor” under the National Labor Relations Act (the “NLRA” or “Act”) and the NLRB’s recent proposal to expedite the procedures for union elections – and how these two developments combined could hamper an employer’s ability to effectively oppose a union-organizing campaign.

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Complying with Medicare Enrollment Screening Criteria In a High-Stakes Environment
By Esther R. Scherb, Kathryn M. Almar, Katherine M. Gigliotti, Latham & Watkins LLP, Washington, DC

In an October 25, 2011 letter to the Secretary of Health and Human Services (“HHS”), top Republicans on the Senate Finance and Judiciary Committees challenged the failure by the Centers for Medicare & Medicaid Services (“CMS”) to fully utilize tools provided by the Patient Protection and Affordable Care Act (“PPACA”) to safeguard the Medicare program from waste, fraud, and abuse. One such powerful tool — aimed at tightening program integrity oversight on the “front end” through the enrollment process — uses new screening measures. Specifically, PPACA directs CMS to create and utilize new risk-based enrollment criteria when screening providers and suppliers (hereinafter collectively “providers”) for participation in the federal healthcare programs.

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Stark Self-Disclosure Protocol – 1 Year Later!
By Conrad Meyer, Chaffe McCall, L.L.P., New Orleans, LA

On September 23, 2010, in response to the enactment of the Patient Protection and Affordable Care Act (“PPACA”), the Centers for Medicare & Medicaid Services (“CMS”) released the Self-Referral Disclosure Protocol (“SRDP”). More than a year later, well over 100 providers have submitted self-disclosures to CMS, but only two resolutions have been reported. Despite the two reported cases, CMS is rumored to have several additional SRDPs in the works that will be disclosed on the website shortly. The premise behind the SRDP was to provide providers with an opportunity to disclose to CMS violations of the physician self-referral law (the “Stark Law”) and request a compromise by the government of its overpayment liability.

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The OFCCP's Expanding Reach: Healthcare Providers as Federal Contractors
By Karen M. Buesing, Akerman Senterfitt LLP, Tampa, FL
and Martin R. Dix, Akerman Senterfitt LLP, Tallahassee, FL

Hospitals, professionals, pharmacies and others who participate in networks that provide medical services could soon find themselves unwittingly subject to the extensive maze of regulations governing federal contractors. The Office of Federal Contractor Compliance ("OFCCP") is aggressively moving to expand its coverage to include healthcare providers who participate in contractual arrangements (and sub-contract arrangements) with the Federal Employees Health Benefit Program ("FEHBP") and TRICARE, as well as under Medicare Advantage Part C (managed/coordinated care plans) and Medicare Part D (prescription drug plans).

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Small Employer Health Plans Faced with Rising Premiums: Weighing the Decision to Maintain Grandfathered Status Versus Adopting Short-Term Measures to Control Costs
By Julie S. Harada, Gorman & Williams, Baltimore, Maryland

Employer premiums have risen by about six percent annually for the past five years. A recent survey by the Kaiser Family Foundation found that premiums for family plans rose nine percent in 2011. Small employers with fewer than 500 employees that offer fully-insured plans may be especially hard hit, as it is predicted they’ll incur an increase of nearly 12 percent in premiums if they make no changes other than those now required by the 2010 Patient Protection and Affordable Care Act (“PPACA”), a greater increase than the nine percent predicted for larger employers.

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Did you know membership in an interest group is FREE with your Health Law Section membership?

Did you know your membership in the ABA Health Law Section qualifies you for free membership in up to three interest groups of your choice? Interest groups, which are comprised of twelve practices areas within health law, make significant contributions to the Section's programming, publications and legislative initiatives. The interest groups also provide an excellent opportunity for you to interact with and have access to some of the most outstanding lawyers in the legal community. You can enroll on our webpage by clicking here. If you have any questions or need more information, please contact Simeon Carson at simeon.carson@americanbar.org


 

Healthcare Facility Operations Interest Group

The Healthcare Facility Operations Interest Group focuses on improving the law and related policy arising from the standards imposed on healthcare providers by external review organizations.

The IG is led by Chair Neil W. Kunkel, Capella Healthcare, Inc., Franklin, TN and Vice Chairs Joyce A. Leahy, Maimonides Medical Center, New York, NY; Conrad Meyer, Chaffe McCall, L.L.P., New Orleans, LA; Scott E. Schwieger, Universal Health Services, Franklin, TN and Steven R. Smith, Ober|Kaler, Washington, DC.

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 Adrienne Dresevic, The Health Law Partners, PC, Southfield, MI and editorial board members Claire Castles, Jones Day, Los Angeles, CA; Michael E. Clark, Duane Morris LLP, Houston, TX; Marla Durben Hirsch, Potomac, MD; Conrad Meyer, Chaffe McCall, LLP, New Orleans, LA; Robert T. Rhoad, Crowell & Moring LLP, Washington, DC and Jennifer Tsao, Hernandez Schaedel & Associates LLP, Pasadena, CA.


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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