Health Care Lawyer Blog

The Detroit Free Press reported last night that a petition drive to give voters a chance to vote on "Universal Health Care" has fallen about 260,000 signatures short of the 390,000 needed to qualify for a ballot position. However, petition drive chairman John Freeman, recognizing that the ballot effort was abandoned because of lack of financial resources and competition from other ballot initiative drives, is reported to have shifted his focus to lobbying attempts.

The petitioners, in my opinion, are well-meaning, but a mandate to the Michigan legislature is doomed to failure. This body is too split by partisan bickering, carried on by inexperienced, term-limited synchophants, to reach a meaningful compromise on such a volatile subject as universal health care. Further, even if they could, the economy in Michigan would never be able to fund such efforts.

Ironically, placement of the petition on the ballot, I believe, would have led to passage where there are some 1.2 million--or more--uninsured Michiganders--and countless other under-insureds. Significantly, the health industry -- the growth engine of Michigan where 1 in 10 Michiganders work (more than twice those directly employed in the auto industry) according to Crain's Detroit Business-- should support a lobbying effort--if it realizes that such a program would mean a million or more new paying customers. Unfortunately, none of the plans on the table in conventional debates will solve the problems with present health insurance by improving health delivery structural deficiencies, the burden on employers and still provide choice to patients and discretion to physicians. I have highlighted a plan which meets all of these objectives in an earlier entry on this Blog--but I doubt it will be debated--it is too logical and efficient.

Nevertheless, the petition effort did keep the dialogue going. Let's hope someone is listening.

NAMFCU is the National Association of Medicaid Fraud Control Units ("MFCUs"). Recently NAMFCU held its annual "Practical Skills" Conference in Denver, Colorado.

The Conference, for state Attorneys General and their assistants and staff involved in state Medicaid anti-fraud enforcement and collection activities provided the following information, in addition to training sessions, to the attendees:

1. A report on the rising level of national cooperation and information, expertise, and skill sharing among MFCU units, and with the Department of Justice.

2. A report on the level of sophistication and training that assistant AGs in all the state MFCU units are receiving at a national level.

3. A report on the involvement of non-Qui Tam States (those without Qui-Tam statutes--about 27) in the fight against health care fraud. They are investing significant investigatory resources and working with relators' counsel with respect to cases that don't even name those states.

Louis Szura, an Associate Attorney at Frank, Haron, Weiner & Navarro, has been admitted, through waiver, to the State Bar of Michigan. Louis, a University of Michigan and Cornell Law School graduate and an attorney licensed, and who has practiced, in Ohio and Illinois, was approved by the Character and Fitness Committee and sworn in before the Honorable Shalina Kumar, Judge of the 6th Circuit in Michigan in Oakland County.

Louis will continue his practice in all aspects of litigation, including health care and complex business matters.

The House voted today to postpone a planned cut in payments to physicians who treat Medicare patients. The bill passed by 355 to 59. There was a fear that the cut--some 10.6%--would affect physician's desire to treat medicare patients. Instead, the bill will increase Medicare payments to doctors by 1.1% in January instead of another 10% cut.

The elimination of the cut will be paid for by reducing payments to private Medicare Advantage programs.

Action in the Senate involves drafting a compromise measure that may avoid a White House veto. Senate Finance Committee Chairman Max Baucus (D-Mont.) and ranking Republican Charles E. Grassley (Iowa) may have reached a deal on the compromise.

This entry has nothing to do with health care--except my own--but one of the funniest, most controversial and wonderful comedians--George Carlin--died Sunday. He was an American institution and many comedians, including Bill Maher, Roseanne Barr, Lewis Black and Jerry Seinfeld reflected on his significance to comedy--and to the country--on Larry King Live. Jerry Seinfeld said: "It's been a bad day--nobody dies at 71 anymore--it is so old fashioned.".

We will miss him......Maybe this is about health care--every time a comedian dies--we all should feel less happy.

The Michigan Medicaid False Claims Act was amended effective January 1, 2006 through the efforts of Attorney General Mike Cox and Representative David Law (R., Commerce). I worked actively for passage of the amendment and testified before the Michigan House of Representative Judiciary committee, then chaired by Rep. Law.

The Amendment brought Michigan into line with 22 other progressive states by adding a Qui Tam provision to the existing Medicaid False Claims Act. According to Wallace Hart, an Assistant Attorney General, actively involved in fraud control, the amendments--giving private citizens the right to bring Qui Tam suits to recover fraudulent monies stolen from the taxpayers by providers treating the Medicaid program as their own private ATM machine--the amendment helped him reduce his in-box.

The Michigan Medicaid False Claims Act prohibits the presentment of any false or fraudulent claim for payment under the Social Welfare Act – namely, for Medicaid benefits. The law currently provides for the State to recover the full amount received by a Medicaid provider due to fraudulent conduct, plus triple the amount of damages suffered by the State as a result of the conduct.

HB 5757, a bill pending before the Michigan Senate after having passed the House in near unanimous fashion, would allow the State of Michigan to recoup extra funds from combined state/federal recoveries because of the provisions of the federal Deficit Reduction Act of 2005 ('DRA"). To explain, shortly after the the Michigan Medicaid False Claims Act amendment passed the Michigan Legislature and Governor Granholm signed the Act, the U.S. Congress passed the DRA providing for a 10% incentive to States which enacted a "compliant" Qui Tam statute addressing Medicaid fraud. Specifically, the Medicaid program is a joint federal/state program. Thus, in Michigan, the federal government pays about 56% and the state 44% of the costs of the Medicaid program and fraud recoveries are divided on the same percentage.

If the state has a "compliant" Qui Tam statute, the state receives an extra 10% of the recovery--that is, 54% in Michigan--of the recovery.

Continue reading " David Haron Testifies on Michigan Medicaid False Claims Act Revisions " »

My partner, Monica Navarro, and I recently returned from Chicago where we attended the American Bar Association Conference on "Physician-Legal Issues--Physicians Under Siege--What is their Future."

Although it was a long day for us--storms between Chicago and Detroit kept us on our Northwest Airlines plane for two hours before takeoff (fortunately in Business Class because of frequent-flyer updates, with free snacks and foot room)--we learned a lot and were able to interact with many health lawyers from around the country.

The Conference covered Fraud and Abuse Issues Impacting Physicians, CMS pressure on Medicare expenditures, Physician Joint Ventures and other Alternative Practice Strategies, such as, physician owned hospitals, ASCs, under arrangements, diagnostic and other ancillary enterprises, concierge medicine, insurance opt-out, managed care models and sales of health care products. Other topics included responses to marketplace demands that impact physician practice models, relationships with hospitals, employment models, etc.

Finally, a panel discussed the future FOR Physicians in the face of pressure on costs of and access to health care, demands by both Democrats and Republicans for "universal" health care, hospital mergers, productivity demands, hospital governance changes, increased regulatory demands and other negative influences on the profession--pointing out--as all physicians know--that the majority of physicians are unhappy, angry, resigned, scaling back expenditures and expectations and deeply concerned about the future.

The conference presentations were at a very high level and highlighted the need for physicians and other health care entities to be proactive and to consider their legal and professional relationships before they experience a crisis. While specialists and others in unique and specific practice niches may not have experienced significant reductions in income, most internists, family practice and pediatricians, among others, have and all are certainly aware of the pressures that have been building in the industry. Comfort today can turn into difficulty tomorrow in the face of hospital mergers and acquisitions, exclusive arrangements forcing out smaller practices and entities, "sham privileging" schemes, increasing employment of Hospitalists, and unfair payer practices.

Consultation with legal and professional experts prior to eruption of credentialing confrontations and issues, unfair competition or payer practices and regulatory activities and suspensions can--and will--reduce future costs, aggravation--or worse.

The tone of the sessions--and especially the luncheon address by Catherine I. Hanson, Vice-President and director of the AMA's Private Sector Advocacy and the Advocacy Resource Center on unfair payer practices and the AMA' s 1% Campaign to reduce payer's improper rejections to 1% of billings--presented a somewhat dismal picture of practice and a real need for increased physician organization and participation in the debate.

Nevertheless, Monica and I returned with a renewed interest in assisting our health care clients and in working with them to develop workable practice models in line with the most cutting-edge--and compliant--practice models in operation and contemplated across the country and globe.

The Presidential candidates, Barack Obama and John McCain, have both proposed forms of "Universal Health Care." However, both plans, and those of the previous candidates, appear to address coverage for the 43,000,000 uninsured Americans--mostly children. little is discussed about the under-insured or those who become uninsured when they lose their jobs. Nor is anything mentioned about eliminating the "600 pound gorilla" in the room with every American employer who is seeing health care benefit payments rising at far more than the cost of inflation.

However, there may be an easy solution--if we had the political will to solve the issue.

We could get the government essentially out of the medical insurance business that Medicare, Medicaid and Tri-Care represent. We could provide every American the same type of coverage that the members of Congress, and their families enjoy. We could relieve every employer in the country of the burden of health care costs.

And we could do this without a painful tax increase or loss of income for the medical providers.

So what's the catch?

There is none, say Ezekiel Emanuel, M.D., PhD., an oncologist, author of No Margin, No Mission, and president of the Posterity Project and Victor R. Fuchs, the Henry J. Kaiser Jr professor emeritus at Stanford University, in their 2005 White Paper, Solved! It covers everyone. It cuts costs. It can get through Congress. Why Universal Health Care Vouchers is the next big idea..

Ezekiel and Fuchs plan envisions a mandatory voucher system providing every American access to the "Rolls Royce" health care protection every member of Congress enjoys, administered by private insurance companies and allowing free choice of providers. Government's only role will be to set up the system, oversee its operation with an independent board, modeled on the Federal Reserve Board, collect the money to pay for the program, through a value-added tax and mailing out the vouchers once a year--like Income Tax refunds.

The details of the system, and the ease of implementation and execution are set forth in their White Paper, but it is clear, as they point out, that the proposal deserves respect and consideration because it meets the obvious goals of any proposal for "health care reform:".

1. Every American is covered,
2. The program is largely paid for by cutting fraud, waste and abuse in the present system--something that has been calculated to be as high as 20% of the present $2 Trillion expense.
3. It reduces the rate of cost increases in the future..
4. The plan will provide more rather than less choice.
5. We will become more productive because of it.
6. Government bureaucracy will be decreased .
7. It will offer much to many interest groups.

Read the plan and let me know how you feel about it---and why you haven't heard of it?

Recently I acted as moderator and presenter for an ABA Business Law Section Teleconference discussing “Qui Tam: What Business Lawyers Need to Know.”

Federal and state False Claims Acts allow a private person to file a qui tam suit to recover monies wrongfully paid to providers by federal or state governments as a result of false claims the defendant made to the government. For example, if a physician practice group is overcharging Medicare, a person can file a sealed qui tam lawsuit that will trigger an investigation, allow the government to recover up to triple damages, as well as fines and penalties, and potentially, receive a substantial reward.

The teleconference I participated in covered:

Bringing a Qui Tam suit.
Avoiding a suit through the use of compliance mechanisms.
Reacting to internal complaints made by whistleblowers.
The employment status of whistleblowers.
Internal investigations, releases, confidentiality and severance agreements.
Do your knees knock when the FBI comes calling.

We are one of the leading Qui Tam firms in the nation, but through the knowledge gained in such representation, we counsel employers and providers in compliance matters and in the implementation of procedures and policies designed to avoid such actions.

My partner, Monica Navarro, and I taught Health law at Cooley Law School last semester. The 14 week class covered all aspects of health law--from the definition of disease, through credentialing, practice formation and operation, antitrust and fraud and abuse.

The class was so well received and we enjoyed teaching it to such a degree, that we decided to institute an in-house continuing education class in Frank, Haron, Weiner & Navarro designed to bring the latest knowledge, cases and news to our attorneys and strengthen their health law skills. the attorneys are all experienced in all aspects of health law and regularly serve our growing base of clients in credentialing, regulatory, transactional and litigation matters; however, our recent experiences will permit us to keep them sharp in cutting-edge practice methods and issues.

I just returned from my Sunday morning Weight Watcher's weigh-in. I reached my "10% Goal" and have lost 10% of the weight I was at when I began the program--this time--in October, 2007. I am looking at another 5% loss within a few months to reach my goal and begin a program of lifetime maintenance. In addition, I am starting an extensive exercise program with a "platoon" type trainer as soon as I pass a stress test ordered by my cardiologist (I had a "minor" heart-attack two years ago so the trainer wants to make certain I am good to go (I know I am, but why take any chances)).

Since I became a weight watcher, I have lost about 6 inches on my waist and many of the clothes I had relegated to the spare closet fit and look terrific. I am finally ready to start shopping again. I also feel much more energetic.

When I started my new program, I issued a challenge to our staff. most are pretty fit and pay attention to what they eat and how they live. We also offered a monetary incentive. We do not have a lot of food and snacks floating around (I used to peek in drawers every afternoon looking for them) but some were unhappy with their appearance. Since my challenge more than one has lost significant weight and we all feel pretty good.

There has been a global movement to '"Wellness Programs" in the workplace (Weight Watchers International and local chapters are available to help organize such endeavors.)

According to the Society for Human Resource Management, wellness programs are a tool to reduce health care costs and disability- and illness-related absences, or and a tactic to attract talent.

Wellness programs are most prevalent in the United States where they’re seen (as our firm has found) as a way to reduce health care costs by making workers more aware of healthy behaviors and encouraging them and their families to adopt healthier lifestyles..

Whether you institute a formal program through an organization such as Weight Watchers or some other professional program, encourage your staff to try something like Weight Loss Wars , create a self-designed pool or contest, or just bring in a healthy lunch now and then, you will see increased productivity, less absenteeism and happier employees.

We are pleased to announce that Frank, Haron, Weiner & Navarro recently joined forces with several professional service firms to launch a new business advisory group, The Alliance. The Alliance was formed to answer the need for expert business analysis and guidance that can be critical to a company’s success in identifying and meeting both short and long term business goals. The Alliance offers a team of established experts that provide clients a single source for addressing their specific business challenges.

The Alliance team includes:
• Frank, Haron, Weiner & Navarro
• Colburn Group
• BBK
• Huffmaster
• StaffPro America, Inc.
• CERB Associates

Clients of The Alliance will benefit from a holistic approach of considering all areas of a business that are integral to its success. Instead of hiring internal experts or researching, interviewing, and contracting several individual consultants, clients can now have an integrated team with best-in-class expertise in a range of fields:
• Law
• Property and Casualty Insurance
• Employee Benefits
• Financial Systems & Operational Performance Efficiencies
• SecurPlace™ (risk and legal management, security and operations) for real estate
• Recruitment Management
• Communications, Marketing, Advertising
• Human Resource Solutions
• Wealth Management

The group is very excited to launch The Alliance, as it is a natural evolution of what each Alliance member has experienced in its collective 150+ year history of providing custom solutions to clients. In today’s world, clients need business guidance in many different areas and, with the launch of The Alliance, we are able to offer one source to whom they can go to solve their business challenges and achieve their goals.

Utilizing a proprietary assessment process, The Alliance provides free initial services customized for each client. Based on the client’s individual needs, a unique Alliance team is created to analyze the business and develop strategies to impact the business’ short-term profitability and long-term viability. The key focus is to offer not only an integrated strategy, but also to provide ongoing support by helping implement and measure the strategies developed.

We look forward to discussing the opportunities The Alliance offers.