SBM |Health Care Law Section
 
April 2010 e-Newsletter
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State Bar of Michigan Health Care Law Section
PO Box 366, Dimondale, MI 48821-0366
Phone: (517) 281-8485
Chair's Letter from Joanne Lax
 
Thank you for participating in the 2009-2010 Bar year.  We have something to benefit all health lawyers, and we hope that you will take advantage of our offerings.
 
Educational Programs
 
The Substantive Law Committee is planning future complimentary educational events: 
 
Thursday, May 27, 2010, beginning at noon, the Payors Subcommittee will host a teleconference entitled Genetic Information Nondiscrimination Act Regulations (GINA). Speakers will be Liz Callahan Morris and Gary Francis. 
 
Wednesday, June 16, 2010, beginning at noon, the Substantive Law Committee will host a teleconference entitled Health Care Reform Impact on Tax Exempt Providers. Speakers will be Ann Hollenbeck and Kathy Kudner. 
 
Watch your e-mail for registration information.
 
Annual Meeting
 
YOUR EXPERTISE IS NEEDED!  SECOND CALL FOR SPEAKERS...
 
The HCLS Annual Meeting will be held on September 23, 2010 at the Charles Wright Museum of African American History in downtown Detroit. 
 
In light of the very recent passage of the Patient Protection and Affordable Care Act and the Health Care Education Reconciliation Act - and the monumental impact these laws will have on our industry and our practices - the HCLS Annual Meeting Planning Committee has decided to open a second round of bidding for speakers for the 2010 annual meeting.  We are seeking speakers who will address how these health reform laws will impact hospitals, physicians and health plans.  We are especially interested in speakers who will bring a practical, business oriented industry perspective to their presentations, in addition to providing basic legal information about these laws.
 
Proposals are due to Joanne Lax at jlax@dykema.com no later than May 9, 2010.  An RFP form is available by contacting the HCLS assistant, Suzette Allen, at allensuzette@comcast.net.
In This Issue
Chair's Letter
Educational Programs
Annual Meeting
Join Counselors for the Cure
Web Site Update
Call for Authors
Current Legal Information
Links
 
 
 
 
 
 
 
 
 
 
 
 
Participate in a Community Service Event and Have Fun, Too!
 
Join "Counselors for the Cure" at the 2010 Susan G. Koman Detroit Race for the Cure
 
Please JOIN the State Bar of Michigan's Health Care Law Section's Team, COUNSELORS FOR THE CURE, at the Susan G. Komen Race for the Cure.  The deadline to join is May 4, 2010 by 6:00 p.m.
 
The race will take place on May 22, 2010 at Comerica Park in Detroit. Crawlers, Walkers and Runners are all welcome! The first 60 people to sign up on our team will receive a free athletic/wicking shirt with our team logo (a value of more than $20), so DON'T DELAY!
 
At approximately 11:00 a.m. following the race, the Health Care Law Section members, friends and families are planning to meet at the Town Pump Tavern, www.thetownpumptavern.com, which is just a short walk from the race.
 
Please register for the race as a member of COUNSELORS FOR THE CURE by clicking on the link below.
 
Register Now!  

If you have any trouble with registration, please let us know at mnavarro@fhwnlaw.com. If Detroit isn't a convenient location for you, check out the Susan G. Komen 2010 Detroit Race for the Cure Web site by clicking the above "Register Now" link for information about similar events being held in other communities. 
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Website Update
 
Member Directory - We are pleased to post an updated directory of all HCLS members on our Web site at http://www.mihealthlaw.com. Please contact Suzette Allen at allensuzette@comcast.net if you did not receive our e-blast containing the password to this resource.
 
New Web Site Search Engine - Our Technology and Web Site Design Committee is pleased to announce the implementation of a new, specialized search engine to be housed on the HCLS Web site.  This search engine will be powered by Google and will focus on material published by Michigan attorneys on their firm Web sites.  A limited scope search engine like this allows users to more easily locate high-relevance search results.  In engineering terms, such a search engine offers a favorable signal-to-noise ratio.  Inclusion of firm Web sites in the database accessed by this search engine is voluntary and free.  Please send an e-mail to Richard Bouma at rbouma@wnj.com to notify him that you want your firm Web site included in the search engine.  Please be sure to include the URL of the Web site.  Watch your e-mail for our announcement of when this new search engine goes lives.
Call for Authors
 
SHOWCASE YOUR KNOWLEDGE IN OUR MONTHLY NEWSLETTER!
 
We are now including short substantive articles in our monthly e-Newsletter.  If you would like to be considered as an author, please e-mail your topic to Joanne Lax at jlax@dykema.com.  Articles should be approximately 250 to 500 words in length and must be original to the submitter and previously unpublished except for firm newsletters.  Selected articles will be distributed via our e-Newsletter and posted on our Web site.
Current Legal Information: 
 
The article that follows represents the views of the author, and not the views of the Health Care Law Section.  It is current as of the date of this newsletter.  Many thanks to Howard E. O'Leary of Dykema Gossett PLLC for submitting this article.
 
HEALTH CARE REFORM LEGISLATION:
PREPARE FOR A NEW WAVE OF GOVERNMENTAL
AND PRIVATE HEALTH CARE FRAUD ENFORCEMENT
 
Scattered throughout the Patient Protection and Affordable Care Act (PPACA) are a number of technical, but highly significant pro-enforcement health care fraud measures.  They include the following:
 
  • Mandatory compliance programs for providers and suppliers enrolled in Medicare and Medicaid on a timeline to be established by the Secretary of HHS.  The Secretary will also prescribe the core elements of such compliance programs within a particular industry or category.  See Section 6401(a).
  • Mandatory return and reporting of overpayments within 60 days after the date on which the overpayment is identified or the date any corresponding cost report is due along with a written explanation for the overpayment.  Retention of an overpayment beyond the 60 day deadline is deemed an "obligation" under the civil False Claims Act (FCA) thereby subjecting the provider or supplier to treble damage and civil penalty liability.  Section 6402(a).
  • Possible suspension of payments from Medicare and Medicaid to a provider or supplier pending completion of an investigation of credible allegations of fraud.  Question:  Will a criminal indictment for fraud and/or the filing of a complaint by the US Department of Justice (DOJ) under the FCA be deemed "credible allegations of fraud" for purposes of suspending the provider or supplier?  The possibility of suspension of Medicare and Medicaid payments may strengthen the Government's hand in negotiating settlements resolving disputed criminal and FCA allegations of fraud.  See Section 6402(a).
  • Civil False Claims Act liability for claims resulting from an Anti-Kickback Act violation - The PPACA amends the Anti-Kickback Act violation a false or fraudulent claim for purposes of FCA liability thereby expanding the universe of potential qui tam plaintiffs.  See Section 6402(a).
  • Narrowing the public disclosure/original source defenses to civil False Claims Act liability by amending the FCA to:  (a) permit the DOJ to oppose dismissal of a qui tam action on public disclosure grounds, (b) narrow the public disclosure defense to a qui tam by eliminating public disclosures in state proceedings as grounds for dismissal and c) broaden the "original source" exception to the public disclosure defense by permitting qui tam plaintiffs who have independent knowledge and "materially add" to the publicly disclosed information to qualify as an original source.  See Section 10104(a).
 
These are only a few of the pro-enforcement changes.  The health reform legislative package provides for an additional $350 million over the next ten years to agencies investigating health care fraud.  The PPACA lowers the level of intent required in criminal prosecutions under the health care fraud statute, 18 U.S.C. 1347 and the Anti-Kickback Act, 42 U.S.C. 1320a-7b.  In such prosecutions, the Government need no longer prove that the defendant had actual knowledge of these statutes or that the defendant specifically intended to violate them, as some courts have required.  It also revises the definition of "health care fraud offense" in the federal criminal code to include violations of the Anti-Kickback Act thereby subjecting violators to possible persecution for money laundering and criminal asset forfeiture.  Additionally, the PPACA provides for increased fines and jail terms for persons convicted of health care fraud offenses by statutorily revising the calculation of "intended loss" under the United States Sentencing Guidelines.
 
As a result of these changes, there will be more qui tam actions, more DOJ and HHS-OIG fraud investigations, increased costs to providers for implementing  and operating compliance programs that include the Secretary of HHS's "core elements," increased costs to providers for responding to grand jury and HHS-OIG subpoenas and increased costs to providers in defending against and resolving parasitic and meritless qui tam actions.
 
For additional information contact Buck O'Leary at (202) 906-8601 begin_of_the_skype_highlighting              (202) 906-8601      end_of_the_skype_highlighting, holeary@dykema.com or Gary Gordon at (517) 374-9133, ggordon@dykema.com.