July 2011 Volume 7 Number 11

Chair's Column

By Linda A. Baumann, Arent Fox LLP, Washington, DC

AuthorWhile many of my prior columns have focused on Health Law Section news, I am writing this column on the Fourth of July; a great time to reflect on the many special aspects of our country and government, including the legal system. I spent the afternoon down on the Mall, leading tours at the Jefferson Memorial. Thomas Jefferson, like many of our Founding Fathers, was a lawyer. Twenty-five of the 56 signers of the Declaration of Independence, and thirty-two of the 55 delegates to the Constitutional Convention were lawyers. Over the years there have been many lawyers serving in all branches of government (although surprisingly, the Constitution does not require a Supreme Court justice to have any legal training).


As we all know, much of our common law legal tradition came from England, including the adversarial system where the lawyer for each party to a dispute is expected to zealously advocate on behalf of his/her client before an impartial judge. (This approach contrasts with the civil law system which generally uses an inquisitorial system, i.e., the judge, as the inquisitor, seeks to establish the truth.) A number of health lawyers, particularly those working in the area of fraud and abuse and compliance, have increasingly expressed concerns that their traditional role as advocate for their client is being eroded by the overwhelming power of the government in fraud and abuse cases. The erosion has taken various forms. At one point, there was tremendous pressure on defendants in False Claims Act cases to waive their right to attorney-client privilege in order to demonstrate their willingness to cooperate with the government. This pressure has decreased to a certain extent but other forms of pressure on defendants and their lawyers continue.

The fraud and abuse statutes, particularly the Stark Law, are extremely complex and contain many gray areas. When it is not clear what the law requires, a lawyer typically must advise his/her client on what interpretation is most likely to be found correct if a judge were asked to rule on the issue. However, as a practical matter, in most fraud and abuse cases arising now, lawyers have to consider what interpretation is most likely to be found correct by the government, typically an Assistant United States Attorney (AUSA) or an attorney in another enforcement agency. This is a very significant difference. For example, while judges will give great deference to an agency’s interpretation of its own regulations, it is the Centers for Medicare & Medicaid Services (CMS), not the Department of Justice (DOJ) or the prosecuting AUSA who is responsible for promulgating and interpreting the Stark regulations. Moreover, even when DOJ consults with CMS, it is very possible that a judge or other independent tribunal might have a different interpretation than CMS of what the Stark Law requires in a particular case. This changing approach to legal analysis is largely fostered by the fact that so few fraud and abuse cases go to trial, which, in turn occurs largely because most providers feel they cannot run the risk of being excluded from participation in federal healthcare programs. In addition, since the vast majority of cases will result in settlement, it is often in the client’s best interests to cooperate with the government to the extent possible in hopes of securing better settlement terms. No one should doubt that the lawyers representing the government and its agencies act in a professional manner to enforce the law as they understand it. At the same time, we can all be appropriately concerned that our system is not well served where practical constraints make it almost impossible, in many cases, for the “official” interpretation of the law to be tested through the judicial process.

The adversarial system is a deeply entrenched part of the American legal process, and there are many other laws, regulations and procedures that reflect and implement it. The 235th anniversary of the Declaration of Independence seems like an appropriate time to give some thought as to whether the current trend in healthcare fraud and abuse enforcement is a wise one. I would welcome your comments on these issues. Please feel free to send your comments to healthlaw@americanbar.org. Depending on the responses received, the Section may be able to publish them in the eSource or another forum to facilitate continuing discussion.

SAVE THE DATE: THE WASHINGTON HEALTHCARE SUMMIT WILL BE HELD EARLIER THIS YEAR - ON OCTOBER 17-18, 2011. You won’t want to miss this outstanding program!

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