Health Care Lawyer Blog

This morning, the United States Senate voted 60-39 for passage of the Senate health care reform bill, a.k.a. the “Patient Protection and Affordable Care Act”. As with Monday’s cloture vote, the bill’s passage was completely divided down the party line, with every single GOP member (with the exception of Kentucky Senator Jim Bunning, who abstained from voting) opposing the bill. The bill will now head to a conference committee, where it will be merged with the reform bill passed by the House of Representatives last month. Both chambers will then vote on the merged bill, which will then be presented to President Barack Obama for signature.

In the hours after the vote, defeated GOP Senators such as Minority Leader Mitch McConnell (R-Kentucky) lambasted the legislation, citing poll figures which show a slight majority of the public is opposed to the Senate Bill.

“There is widespread opposition to this monstrosity,” McConnell said after this morning’s vote. “The fight isn’t over.”

Legislation which appeases everyone is, in most cases, impossible and there are bound to be dissenters in any Congressional action. However, given the unusual levels of misunderstandings, rumors and public outcry which has surrounded the health care reform debate, one can’t help but wonder – is the American public really opposed to the actual content of the health care reform legislation as it stands, or are they just opposed, period?

After the jump - reflections on the health care reform debate

Continue reading " Editorial: “The Devil I Know is Better than the Devil I Don’t” " »

Despite the fireworks caused by the night-owl Senate vote for cloture on the “Patient Protection and Affordable Care Act” by a margin of 60-40, the real questions remains – what is health care reform going to mean for America? While the Senate and House versions of health care reform legislation are similar in scope, bills contain significant differences in how the legislation will be paid for.

The hotly-contested Senate bill, which does not contain the “public option” insurance coverage provision in its House counterpart, was heralded by President Obama this morning as “a big victory for the American people.” However, given the call for bi-partisanship that emanated from last year’s presidential election, the vote was not a political victory. The vote was so evenly divided down party lines, with every single Republican Senate member opposing the bill, that Democrats were forced to coax votes from waffling Senators such as Joe Lieberman (I-Conn.) and Ben Nelson (D-Neb.) by slicing provisions from the legislation. Specifically, in order to garner Nelson’s vote, amendments were made to the bill’s abortion provisions and a provision was added requiring the federal government to cover Nebraska’s costs for expanded Medicaid coverage after 2016. (No other state is currently slated to receive this benefit.) Additionally, the public option and Medicare expansion program was jettisoned to appease Lieberman and middle-of-the-road Democrats.

The Senate will hold additional procedural votes on the health care bill this week, and a final vote is scheduled for Christmas Eve. If the bill passes (as expected), the Senate version will then head to a conference committee, where it will be merged with a House health care bill passed last month. Both the House and Senate will then have to approve the final version before it goes to President Obama to be signed into law.

Comparing the House and Senate Versions

Both the House and Senate versions require nearly all individuals to maintain a minimum level of health insurance or pay a penalty, with the House version calling for a penalty of 2.5 percent of adjusted gross income over a certain level ($9,350 for singles and $18,700 for couples). Individuals who cannot afford health insurance will receive subsidies to do so. The House bill provides for the creation of a single-payor, government run insurance plan where individuals can obtain coverage; the Senate bill would instead create new nonprofit private plans overseen by the federal government.

After the jump - comparing the House and Senate bills (continued)

Continue reading " Senate Votes for Cloture on Health Care Reform; Bill Inches Towards Final Vote " »

Senator Joe Lieberman (I-Conn.) claims that the Democrats are short two votes needed to pass the healthcare reform bill currently pending in the Senate. As previously reported, without GOP support Democrats need all 60 votes to defeat a Republican filibuster – a seemingly impossible task, given that no GOP member supports the bill in its current form.

In an interview Sunday with “Face the Nation,” Lieberman claims that provisions in the bill which expand the Medicare program, create a national public option, and begin a new publicly administered long-term care insurance program are thwarting the legislation. If left out, however, Lieberman said the bill could gain votes. He added that even if the provisions were dropped, the remaining legislation is solid enough to improve the health care infrastructure and make significant changes.

Sen. Ben Nelson (D-Neb.) also appeared with Lieberman on “Face the Nation” and echoed the independent senator’s sentiments. Nelson added that he is concerned that a Medicare buy-in provision (i.e., allowing adults in their 50s and early 60s to buy into Medicare as a way to expand their coverage options) would be a “forerunner of [a single-payor program]” and that stronger anti-abortion language is needed in order to gain his vote.

Non-smokers in Michigan can finally breathe easy – literally.

Effective May 1, 2010, all restaurants and bars in the state will be required to be smoke-free following legislation that was passed by the Michigan House and Senate Thursday. The bill (H.B. 4377) is headed to the desk of Governor Jennifer Granholm, who has stated that she intends to sign it.

Efforts to pass the non-smoking legislation were log-jammed for years by groups who claimed such laws would affect business owners’ autonomy, or have an adverse impact on casino business. The approved bill does not apply to Indian gaming casinos, and allows smoking on the gaming floors of other casinos, but not in casino bars, restaurants or hotels. Also exempt are tobacco specialty shops and existing cigar bars that have humidors and derive at least 10 percent of their revenue from the sale of cigars. The legislation does not permit new cigar bars to open.

Affected establishments are required under the legislation to remove all ashtrays from the business premises by May 1, and post signs that smoking is not allowed. In the event a patron does choose to light up, the penalties will be assessed against the smoker, and not the establishment. Violating the smoking ban counts as a civil infraction, with the first violation resulting in a $100 fine and subsequent violations in a fine of up to $500.

After the jump - author's comments on the legislation.

Continue reading " Michigan Bars, Restaurants to be Smoke-Free By May 2010 " »

The Sixth Circuit Court of Appeals issued an interesting opinion last week regarding the standard of causation required to prove that a health care practitioner’s fraudulent practices resulted in the death of a patient under 18 U.S.C. §1347(2). In United States of America v. Martinez, Case Nos. 06-3882/4206, the Sixth Circuit held that where the death of a patient is a “natural and foreseeable result” of a defendant’s violation of the health care fraud statute, a defendant may be held criminally liable under the statute.

In Martinez, the Federal Bureau of Investigation (FBI) began investigating the defendant anesthesiologist, Dr. Jorge A. Martinez, for health care fraud in the summer of 2002. Martinez operated a pain-management clinic in Parma, Ohio, where he regularly prescribed controlled substances and administrated injections for pain relief and billed private insurance carriers, Medicare, Medicaid, and the Ohio Bureau of Workers’ Compensation. The Government’s investigation revealed that Martinez engaged in fraud by omitting physician examinations, giving his patients more injections than were medically necessary or advisable so as to boost billings and leave them dependent on such drugs, and conducting “quickie” office visits where he saw a patient for only 2 or 3 minutes then billed for a much longer visit.

At trial, the government presented evidence that Martinez’s administration of injections to patients far exceeded the state average for pain-treatment doctors in Ohio. The Government also showed that on the days the patients received injections, Martinez only gave his patients an average of 4.14 shots in one visit, while the statewide average was 1.18; and that Martinez saw many more patients per day than other doctors, which evidenced that Martinez provided substandard medical care. This was supported by numbers from practice sign-in sheets, and testimony from Martinez’s staff saying that he frequently spent only two to five minutes with patients during appointments. An expert also opined that a doctor who was properly treating patients for pain could not possibly see that number of patients each day.

Continue reading " Sixth Circuit Sets Out Standard of Causation to Prove Death from Health Care Fraud " »

This week the Health and Human Services Office of Inspector General (OIG) released its Fall 2009 Semi-Annual Report to Congress, detailing the office's audit, investigation, and evaluation accomplishments for the second half of the fiscal year. The Report announced $20.97 billion in savings and expected recoveries for the entire fiscal year 2009, which includes $16.48 in implemented recommendations to put funds to better use; $492 million in audit receivables (from HHS/OIG internal audits), and $4 billion in investigative receivables (from Government investigations).

Sadly, however, these numbers lack any real punch in the big picture of health care expenditures. For starters, the first half of FY 2009 reported $274.8 million in audit receivables and $2.2 billion in investigative receivables, which means numbers for the second half of the FY are down $57.6 million and $400 million, respectively. Secondly, the OIG report also disclosed that for the FY 2008, the cost of the Medicare and Medicaid programs (for the federal government and states) was a combined $812.9 billion. Given that the FBI estimates that approximately 3-10 percent of health care spending each year is wasted on fraud and abuse, this means the OIG should be able to recoup roughly $24 billion to $81.29 billion each year.

While the OIG recoveries are a step in the right direction, it is clear that any effective health care reform plan must include extensive pro-active measures to help combat fraud and abuse. Otherwise, expanding health care coverage will only mean increased opportunities for unscrupulous individuals to take advantage of the system.

Frank, Haron, Weiner and Navarro, in collaboration with the United States Attorneys Office for the Eastern District of Michigan, has settled a false claims suit against SCCI Hospitals of America,Inc. (SCCI), a provider of specialized long-term acute hospital care (an “LTACH”), to recover $830,166 in payments allegedly misappropriated from Medicare.

The lawsuit was filed on May 18, 2005 by the law firm under the qui tam provisions of the federal False Claims Act (31 U.S.C. 3729 et seq.) on behalf of Teri Hall-Dutts, R.N., Robert Kuzina and Donna Rudolph, R.N., in the U.S. District Court for the Eastern District of Michigan in Case No. 05-40351. On July 26, 2006, Christine Paulus and Angela DeGrez, represented by Patricia Stamler of the Bloomfield Hills, Michigan law firm, Hertz Schram, filed a similar lawsuit in Case No. 06-13393. The cases were consolidated in September, 2007 and the settlement announced here resolves both cases.

The settled law suits claimed that, between October 1, 2004 and September 30, 2005, SCCI submitted claims to the Medicare Program for services provided by SCCI Detroit which were not medically necessary because they were provided beyond the date when the patient should have been discharged, or because the patient did not meet admission criteria for an LTACH. SCCI, headquartered in Houston, Texas, operates Long-Term Acute Care Hospitals in several states but the subject matter of the lawsuits were the operations of its facility in Detroit, Michigan. SCCI previously settled another suit in 2007 for $75 million for conduct from 1996-1999 involving numerous Texas locations.

The Relators will share an award of 20.5 percent of the settlement or $170,184.11. The defendant also agreed to pay $107,983.89 for Relators’ expenses and attorney fees. In settling the suit the defendant neither admitted liability nor did the government conclude that the claims were not well founded.

After the jump - why the FCA is crucial to combating fraud

Continue reading " Detroit Long-Term Care Facility to Pay Back Over $800K in Medicare Fraud Settlement " »