Health Care Lawyer Blog

Congress has again delayed the pending 21 percent reduction in the 2010 Medicare Physician Fee Schedule. A bill that was swiftly passed through the House and Senate late last month grants an additional 30-day extension for implementing the cuts in physician reimbursement rates. The bill, H.R. 4691, also extended for one month the expiration deadline for unemployment benefits and COBRA health care subsidies.

In other postponement news, the FTC has (again) delayed enforcement of the Red Flags Rule from November 1, 2008 to June 1, 2010. The American Medical Association has continued its efforts to convince the FTC that the rule should not apply to physicians and their practices. Since the rule was issued, the AMA has objected to the FTC’s stance that physician practices are “creditors” since they accept insurance and bill patients after services have been provided, or if they allow patients to set up payment plans for services.

The AMA’s efforts are most likely spurred on by an October 2009 decision from the U.S. District Court for the District of Columbia held that the Red Flag Rules did not apply to attorneys. The decision was the result of a lawsuit filed by the American Bar Association which protested the application of the Red Flag Rules to attorneys. Specifically, the court held that the law was too vague to infer that Congress intended to regulate the legal profession as creditors.

The number of patients lacking health insurance is on the rise in the nation’s public hospitals, according to a survey released this week by the National Association of Public Hospitals and Health Systems (NAPH). The survey, which examined the patient population at so-called “safety net” hospitals (which typically deliver a significant level to low-income and vulnerable populations) reported an increase of 23 percent in the number of uninsured patients receiving care at their facilities since the start of the recession.

While examining patient populations at safety net hospitals may seem counter-intuitive, the results of the survey also show a 10 percent increase in uncompensated care costs at public hospitals. These costs can average up to $2.3 million per hospital, with some hospitals incurring additional costs of upwards to $16 millions.

Forty-one health systems participated in the survey, which was conducted during the second half of 2009. Although safety-net facilities represent just 2 percent of the hospitals in the count, they provide 19 percent of all hospital-based uncompensated care.

The NAPH’s report was released on the eve before today’s health care reform summit, which is the latest in President Barack Obama’s attempt to resuscitate his health care reform efforts. Efforts to pass legislation stalled as a result of last month’s GOP Senate victory in Massachusetts, which stripped the Democrats of their all-important 60th vote.

Next week marks the deadline for health care covered entities and business associates to comply with several privacy law requirements implemented by the 2009 Health Information Technology for Economic and Clinical Health Act (a.k.a. HITECH Act). Specifically, under the language of the Act, the following must be satisfied by February 18, 2010:

- Business Associate Agreements. Previously, business associates were required to comply with HIPAA-related privacy laws through a contract with a covered entity, but were not directly responsible for HIPAA compliance. Now, business associates are bound by the HIPAA laws, and must have policies and procedures documenting the same. Specifically, any business associate who performs work on behalf of a covered entity with respect to the entity’s “covered functions” must amend their business associate agreements to add language that the business associate must comply with the HIPAA rules (including breach notification requirements) and include details on how the business associate will store and safeguard PHI.
- Minimum necessary rule. Covered entities are now required to use or disclose only the “minimum necessary” amount of PHI required to complete a covered function. While HHS has yet to issue guidance on the definition of “minimum necessary” (such details are expected to be released August of 2010), effective February 18 covered entities are to use a “limited data set” or the least amount of PHI necessary to accomplish the intended purpose.
- Request for restrictions. Currently, covered entities must allow individuals to request restrictions on how their PHI may be disclosed, but are not required to honor such requests. For example, a patient who pays out-of-pocket can request that his health care provider not disclose information about his medical condition or treatment to his employer/insurer. Under the old privacy laws, a covered entity was required to accept the patient’s request but did not have to act upon it. Effective February 18, however, covered entities must honor requests not to disclose PHI (for purposes of payment or health care operations only) if the patient pays the entire cost of treatment out-of-pocket.

After the jump - HITECH amends access, marketing policies

Continue reading "Major Changes to HIPAA Laws Take Effect Feb. 18" »

As part the of nationwide “Communities Putting Prevention to Work” initiative (or as I like to call it, the “Duh” initiative), the Department of Health and Human Services has awarded $119 million in grant monies to states and U.S. territories to support efforts to reduce obesity, increase physical activity, improve nutrition and reduce smoking. The initiative is funded through the American Recovery and Reinvestment Act and is directed at curbing “behavioral” waste, which is often cited as a factor in the rising costs of health care.

The monies will be allocated to all 50 states, the District of Columbia, and U.S. territories to help communities and schools support healthy choices. For example, one projected use of the funds will go towards using the media to support healthy food and beverage choices and increase physical activity, and increasing access to health choices and “safe” places to be active (which is a often-cited as a concern in inner-city areas). Grant monies will also be used to fund “quitting hotlines” for smokers and media campaigns promoting tobacco cessation.

The awards are broken up into three major categories – 1) Statewide policy and environmental change; 2) competitive special policy and environmental change, and 3) Tobacco cessation through quitlines and media. The awards to Michigan are as follows:

Policy and Environmental Change - $1,299,666
Competitive Special Policy and Environmental Change Initiative - $1.5 million to reduce exposure to second-hand smoke, including partnering with Native Americans.
Tobacco cessation through quitlines and media - $1,251,009

The grants to Michigan represent are among the largest in each of the three categories (Michigan received the seventh-highest for Policy and Environmental; seventh in Tobacco cessation, and was included as one of 13 states to receive funding for special policy and environmental changes.) Some examples of other states initiatives under the latter category include a grant of $2.7 million to Texas to promote breastfeeding; $2.3 million to Minnesota to revamp school lunch menus; and $3 million to North Carolina to “conduct a state-level policy analysis and develop a process to promote physical activity through land use and transportation planning.”

After the jump - Michelle Obama's Let's Move! campaign

Continue reading "HHS Awards $119M in Grant Monies to Promote Healthy Lifestyles" »

As a blogger, I do so enjoy occasions where government officials confirm my observations.

For example, last Wednesday I posted on how health care reform legislation should focus on combating fraud as a way to reduce the rapidly escalating costs of care. On Thursday, during the National Summit on Health Care Fraud held in Bethesda, Maryland, Attorney General Eric Holder disclosed that Justice Department records show that efforts to combat health care fraud have stalled in the past two years.

Holder stated that two years after the federal government ramped up its efforts to combat Medicare fraud, the number of people charged with such fraud has barely changed. Specifically, federal prosecutors have charged 803 people with defrauding medical insurers in FY 2009. (Nearly all of the charges involved Medicare fraud.) This number represents a mere 2 percent increase since the government began deploying “strike forces” to target fraud in 2007.

The 2007 strike force targeted fraud in Miami, and following the inception of the Miami program the number of people charged with health care fraud leaped nearly 35 percent. The strike force program, also known as the Health Care Fraud Prevention & Enforcement Action Team or HEAT, has since been expanded to six other cities (Detroit, Houston, Los Angeles, Baton Rouge, New York, and Tampa). Strike force efforts in the latter three cities began in December of 2009.

Notably, according to Louis Saccoccio, head of the National Health Care Anti-Fraud Association, many of the charges constitute “low hanging fruit” and while the government has generally done a good job targeting fraud, there are many undiscovered cases.

During the Summit, Attorney General Holder noted that fraud costs Medicare an estimated $60 billion a year. This is number is significantly higher than reports from the FBI, which estimates that combined fraud in all health care programs eats up 3-10 percent of total health care spending. Since the operating costs for the Medicare program in FY 2008 ran around $460.9 billion, $60 billion in losses would mean that fraud accounts for 13 percent of the Medicare budget.

After the jump - where anti-fraud efforts will be directed

Continue reading "Anti-Health Care Fraud Efforts Stalled, According to AG" »

It’s no secret that the health care reform legislation steamrolled through Congress late last year has lost much of its momentum. Although the headline-seizing GOP victory in Massachusetts last week only means the loss of one single Senate seat, political commentators and lawmakers have acknowledged this virtually eliminates the chance of a final health care reform bill being passed anytime soon. Indeed, last Tuesday’s events in a tiny state of only 6.5 million has thrown Capitol Hill into a tailspin, with many viewing it as a catastrophic failure of the Democratic party and Newsweek’s latest cover story referring to Obama as the “stymied President of 2010.”

What’s devastating and frustrating is that while everyone agrees the current health care system doesn’t work, apparently no one will agree or take action on how to fix it. Even the anti-health care fraud legislation introduced last year by Senators Ted Kaufman (D-Del.) and Charles Grassely (R-Iowa) hasn’t advanced since October 28 and November 16, respectively, when the bills were referred to Senate committees. Is America so far politically divided that we can’t even agree that unscrupulous practitioners stealing health care funds is wrong and needs to be stopped?

After the jump - why health care fraud affects everyone

Continue reading "Editorial: Stopping Fraud Should Be A First Step in Health Care Reform" »

If corrupt physicians and other health care providers submitting false claims to Medicare and Medicaid themselves wasn't bad enough, there's a new twist to the health care fraud scheme. According to a CNN.com article today, a new fraud trick where hospital administrators or physicians' assistants actually sell patient data to organized crime groups has become increasingly common.

The crime groups then use patients' medical insurance data and social security numbers to bill Medicare (and private insurers too) for drugs, equipment and treatment which was never actually prescribed. To collect the money, the fraudsters set up "shell" companies which can dissapear easily at the hint of a government investigation. Some criminals even sell patient insurance information to uninsured individuals who are desperate for medical care.

If there are no unscrupulous providers around to sell the information, many crime groups hack into digital medical records in order to siphon patient information. Unfortunately, such crime trends may be on the rise as the use of electronic health records increases.

Bottom line - we not only have to worry health care fraud, but identity theft too. Here's hoping that the increased HIPAA penalties will encourage health care providers to keep patient information safe.

By now, everyone knows (or should know) that under the Stimulus Bill, health care providers are required to make “meaningful use” of electronic health records (EHRs) by 2011 or face penalties in the form of reduced Medicare/Medicaid payments. What has been unknown until recently is what exactly “meaningful use” actually means.

The Centers for Medicare and Medicare Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) issued two proposed regulations December 30, 2009 outlining the terms of the EHR incentive programs, and identifying how providers can make “meaningful use” of EHR and the standards and specifications that will be used to develop “certified” EHR technology.

Both regulations are open to public comment until on or about March 2, 2010 and will take effect sometime in early 2010.

Here are some highlights from the regulations:

Definition of Meaningful User

CMS’s proposed rule defines the term “meaningful user” as an eligible professional or eligible hospital that, during the specified reporting period, meets the following three requirements:
(1) Demonstrates use of certified EHR technology in a meaningful manner;
(2) Demonstrates to the satisfaction of the Secretary that certified EHR technology is connected in a manner that provides for the electronic exchange of health information to improve the quality of health care such a promoting care coordination, in accordance with all laws and standards applicable to the exchange of information; and
(3) Using its certified EHR technology, submits to the Secretary, in a form and manner specified by the Secretary, information on clinical quality measures and other measures specified by the Secretary.

Both the CMS and ONC guidelines make clear that a major consideration of whether “meaningful use” is achieved will be a provider’s ability to securely exchange information among providers, and between providers and patients, using standardized data elements and technologies. The interim final rule issued by ONC set forth these standards and specifications on how to achieve meaningful use; for example, one recognized problem is how providers using EHR actually report patient data. For instance, one provider’s EHR program may list patient demographic information as (PatientAge, Patient Sex, Patient Address), while another provider’s may list similar information in a different way (Date of Birth, Gender, City/State). In order to achieve maximum interoperability, these information models must be reconciled.

After the jump - a phased approach to implementation

Continue reading "CMS/OCN Issue Proposed Definition of “Meaningful Use”, Set Standards for Electronic Health Records" »

The personal health information of thousands of Detroit area patients was compromised recently when five computers and a flash drive were stolen from the Herman Kiefer Health Center in downtown Detroit. The stolen devices contained electronic medical records for approximately 10,000 immunization program patients, including names, addresses, social security and Medicare/Medicaid numbers.

Following this electronic medical records security breach, many health care providers may be wondering how they would respond to a similar crisis. In light of the Congressional push to require health care providers to make “meaningful use” of electronic health records by 2011, the prevalence of electronic records is on the rise and will only increase in coming years. Additionally, the proper handling of such breaches has become even more crucial in light of the security breach notification requirements that were added last year to the Health Insurance Portability and Accountability Act (“HIPAA”).

Given that a medical records security breach is enough to send even the most seasoned health care provider into a panic, practitioners should familiarize themselves with the HIPAA breach notification requirements and establish written policies and operating procedures before a breach occurs. Importantly, providers who fail to adhere to the HIPAA breach notification requirements may face penalties of anywhere from $100 to $1.5 million, depending on the nature of the breach and the mental state of the provider.

After the jump - a crucial checklist for providers

Continue reading "Responding to an Electronic Medical Records Security Breach: What Every Health Care Provider Needs to Know" »

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.

Last Wednesday the Centers for Medicare and Medicaid Services (“CMS”) published the final rule (subject to comment period) for the 2010 Medicare Physicians’ Fee Schedule. (See 74 FR 61738, Nov. 25, 2009.) Notably, the Fee Schedule includes a proposed decrease of 21 percent in the physician fee schedule conversion factor, meaning reimbursements for many procedures will drop significantly under the new rule. The most affected practitioners will be rheumatologists, surgeons, pain management specialists, radiologists and non-invasive cardiologists. For example, reimbursement costs-for-procedure for echocardiography will drop roughly 35 percent under the proposed rule.

However, Congress has already intervened – on November 19, the U.S. House passed legislation which would allocate $210 billion over the next 10 years to prevent the reductions to physicians participating in the Medicare program. The bill (H.R. 3961), which still needs Senate approval, would create a new formula would actually boost doctors’ payments by 1.2 percent, instead of the 21 percent reduction now scheduled to take effect.

According to House Energy and Commerce Committee Chairman Henry Waxman (D-Calif.), the proposed Fee Schedule formula is too low and “would bring about havoc in the Medicare program.”

While the Obama administration has endorsed the plan (a Nov. 19 statement from Press Secretary Robert Gibbs called the measure “an important step forward”), the future of the bill in the Senate is not so certain. For starters, the Senate will begin debates this week on the passage of the Senate’s health care reform bill, the “Patient Protection and Affordable Care Act.” With the Patient Protection Act guaranteed to seize the spotlight, it is likely that little attention will be given to the H.R. 3961. Additionally, the Senate already blocked a similar proposal last month.

While the issue of whether physicians and health care practices are “creditors” under the Federal Trade Commission’s proposed Red Flags Rule is subject to some debate, a definitive answer will not be needed for awhile. The Federal Trade Commission (FTC) has announced that it has delayed enforcement of the Red Flags Rule until June 01, 2010. This last minute extension was made in response to a request from Members of Congress.

Specifically, on October 20, 2009, the House of Representatives passed a bill that would exempt certain businesses with fewer than 20 employees from the Red Flags Rule. The businesses exempted would be health care practices, accounting practices and legal practices. Additionally, the bill would require the FTC to adopt regulations setting forth a procedure for businesses having a low risk of identity theft to apply for exemptions from the Red Flags Rule. The Senate has not yet voted on this legislation. Accordingly, it is not known whether this bill will become law.

The Red Flags Rules, which were originally slated to take effect November 1, 2009, have come under fire from groups such as the American Medical Association and American Bar Association which claim that the Rule should not apply to healthcare practices or legal practices. Essentially, the Rule requires that all financial institutions and other businesses defined as “creditors” must implement programs to combat identity theft against customers. The FTC’s definition of “creditors” includes all businesses that regularly permit deferred payments for goods and services. According to the FTC handout (“Fighting Fraud with the Red Flags Rule”, available at http://www.ftc.gov/redflagsrule) such “creditors” can include health care providers (and also legal services providers).

Continue reading "FTC Delays Enforcement of Red Flags Rule (Again)" »

As a follow-up to last week's post about GlaxoSmithKline's new CME standards, it appears that some pharmaceuticals companies are not so keen on self-regulation. Allergan Inc., the company that produces the Botox wrinkle treatment, has filed a lawsuit against the Food and Drug Administration (FDA) claiming that the FDA prohibitions on off-label marketing violate the company's right to freedom of speech.

The lawsuit, which was filed last Thursday in the District of Columbia federal court, names the FDA and U.S. Government as defendants. In the suit, Allergan claims that it should be able to educate physicians about the risks and benefits of using Botox treatments for unapproved uses. While physicians may legally prescribe drugs for uses that are not approved by the FDA, drugmakers are forbidden from actively marketing "off-label" uses or encouraging physicians to prescribe them for such.

Botox is approved by the FDA to smooth wrinkles, as well as treat some kinds of muscle disorders. But last April, government officials warned health care providers and patients about potential deadly risks for unapproved uses, such as treating muscle spasms. Specifically, the drugs carried a risk of botulism symptoms, especially when given to children to help alleviate muscle spasms. The warnings resulted in updates to Botox's "black box" packaging label, which now urges physicians to tell patients about the risks associated with botulin-based drugs.

After the jump - how viable are Allergan's claims?

Continue reading "Drugmaker Claims Off-Label Marketing Restrictions Violate Free Speech" »

Last week drug giant GlaxoSmithKline announced a new standard for funding continuing medical education (CME) programs for health care providers – a sign that drugmakers are responding to public outcry and recent settlements involving improper marketing practices. Specifically, starting in 2010 GSK will fund only independent medical education programs that “are clearly designed to close gaps in patient care, and that demonstrate support for the optimal performance of health care professionals.”

Paying health care practitioners hefty sums to host/attend sham “continuing medical education” junkets as an inducement for prescribing pharmaceuticals has long been a standard industry practice. However, drugmakers have been slammed in recent years with False Claims Act cases alleging that pharmaceutical companies engaged in extensive “off-label marketing”, a term used to describe the practice of marketing drugs for non-FDA approved uses. Earlier this month, the Department of Justice announced the largest False Claims Act settlement in history with drugmaker Pfizer. Specifically, Pfizer will pay $2.3 billion to settle allegations that it improperly marketed numerous pharmaceuticals, including by paying physicians hefty sums for sham “speaking engagements” to induce them to prescribe drugs for off-label purposes.

According to the GSK press release, the drugmaker will invite grant applications for CME from medical education providers with “a documented track record of developing and delivering high quality medical education delivering high quality medical education programs that have a measurable impact on improved patient health. Potential grant applicants will be limited to academic medical centers and their affiliated teaching and patient care institutions, as well as national-level professional medical associations that represent healthcare professionals responsible for the delivery of patient care. All selected providers must be directly accredited by a recognized accrediting body.” GSK will also post all approved grants on its website, www.us-gsk.com.

After the jump - have the tides finally turned for Big Pharma?

Continue reading "GSK Announces New CME Standard Following Drug Industry Shake-Up" »

As lawmakers scramble to devise ways to fund the health care overhaul, a recent estimate from the Federal Bureau of Investigation shows there may be a cool $75-$250 billion floating about in the health care system.

It may not be easy to recoup, but that’s the amount that could be saved each year by eliminating fraud and abuse in public and private health care programs. The estimate, which appears as part of an article published by HHS OIG chief counsel Lewis Morris in the latest issue of “Health Affairs” (September/October 2008, Vol. 28, No. 5) also means that roughly 3-10 percent of total health spending is wrongfully siphoned away by fraudsters.

Given that Medicare is expected to cost the federal government $503.1 billion in fiscal year 2009 (and Medicaid is anticipated to cost federal and state governments $386 billion), these numbers make clear that health care fraud is not just committed by a few scattered criminals masquerading as health care providers. Instead, such fraud is pervasive and extends all the way from Pfizer boardrooms to infusion clinics.

While combating such fraud may seem daunting, the article identifies several ways in which fraud can be controlled:

Five ways to combat health care fraud after the jump:

Continue reading "3-10% of Health Care Funding Lost to Fraud Each Year" »

Today the Department of Health and Human Services' final regulations governing the new Health Insurance Portability and Accountability Act (HIPAA) security breach notification requirements were published in the Federal Register. These regulations take effect September 23, 2009, and health care providers should take care to familiarize themselves with the requirements by then.

The Health Information Technology for Economic and Clinical Health (HITECH Act), which was part of the 2009 Stimulus Bill, requires HIPAA-covered entities to provide notification to affected individuals and the Secretary of Health and Human Services following the discovery of a breach of unsecured protected health information (PHI). In some cases, the HITECH Act requires covered entities to provide notification to the media of the breaches. In the case of a breach of unsecured PHI by a business associate (such as an accountant or attorney) of a covered entity, the Act requires the business associate to notify the covered entity of the breach. Finally, the Act requires the Secretary of Health and Human services to post a list of covered entities that experience a breach of the PHI of 500 or more individuals on the HHS website.

However, it is important to note that the HITECH Act does not require the reporting of every slip-up and privacy violation by a covered entity or business associate. For example, in order for a breach to occur the PHI must be “unsecured”. This means that the information must not be rendered unuseable, unreadable, or indecipherable to unauthorized individual. For example, if a covered entity accidentally emails notes on a patient file to the wrong address, but the email is encrypted in a certain fashion delineated by the regulations, the notice requirements would not be triggered because the information is not “unsecured”.

After the jump - how to determine if a "breach" has occurred >>

Continue reading "Health Care Providers Should Take Note of Final HIPAA Breach Notification Laws" »

Back in 2005, the supermarket chain Safeway (along with undoubtedly hundreds of other employers) was brainstorming ways to reduce the company's health care costs. The chain proceeded to implement a unique method for doing so - by providing its employees with financial incentives to practice healthy behavior.

According to a recent Wall Street Journal editorial authored by Safeway CEO Steven A. Burd, the plan has been a success and the supermarket giant has managed to keep its healthcare costs steady (while most American companies' costs have increased 38 percent in the same four years.) Specifically, the Safeway health care model relies on a provision in the 1996 Health Care Portability and Accountability Act (HIPAA) that permits employers to differentiate premiums based on behaviors.

The plan works as follows: Safeway's employees pay a portion of their own health care through premiums, co-pays and deductibles. Employees are tested on four chronic conditions which regularly attribute to increased health care costs - tobacco usage, healthy weight, blood pressure and cholesterol levels. (The testing program is voluntary and data is collected by outside parties, and not shared with company management.) If employees pass all four tests, annual premiums are reduced $780 for individuals and $1,560 for families.

Continue reading "Editorial: Cut Health Care Costs by Encouraging Healthy Behavior" »

As part of the continuing push to reform health care, the Obama administration has announced a proposal to decrease Medicare payments for imaging services and to specialists such as cardiologists and radiologists, and use the savings to increase payments to primary care physicians.

Physicians who pursue careers in primary care may be compared to law school grads that join public interest associations – i.e,. they are foregoing the hefty paychecks of their peers who enter more specialized fields. For example, family medicine doctors earn an average of $185,000 per year, while specialists like radiologists or cardiologists can earn twice that much. However, the waning interest in primary care has led to a decrease in the number of primary care physicians, which is cited as one reason for the nation’s health care crisis. Specifically, patients without a primary care physician typically do not receive the type of preventative care that is essential to good health, such as cholesterol monitoring, smoking cessation guidance, or health management.

Take the following as an example – suppose Joe (let’s call him “Joe the Painter”) develops a nagging cough. He tries to make an appointment to see one of the few primary care physicians in his town who accept his insurance, but cannot get an appointment for several weeks. Joe decides he will just “tough it out” and hopes the cough will go away. Unfortunately, the cough gets worse. When Joe finally does get in to see a primary care doctor, the cough has evolved into severe bronchitis and Joe must be hospitalized. Joe spends several days in the hospital and receives thousands and thousands of dollars of medical treatment. As it turns out, his bronchitis was caused by a minor virus which could have easily been treated with an inexpensive antibiotic that his primary care physician could have prescribed.

Continue reading "Medicare Payments for Imaging, Specialists Slashed Under Proposed MPFS" »

A bill which would ban smoking in almost all Michigan workplaces was recently approved by the House of Representatives and will now move to the Senate for consideration. House Bill 4733, which would prohibit smoking in all public establishments with the exception of cigar bars and the gaming floors of casinos (including Native American casinos), is similar to the smoke-free workplace laws already passed in 37 states and the District of Columbia. A previous bill introduced last year, HB 4163, was approved by the House and Senate but failed to receive enough votes to be passed to Michigan Governor Jennifer Granholm for signing.

Supporters of the Bill, such as the Michigan Campaign for Smokefree Air, urge that such anti-smoking restrictions are necessary to protect the health of Michigan workers and consumers. However, HB 4733 has been met with opposition from restaurant and bar owners who claim such a bill would strip them of their autonomy as business owners. (Perhaps due to these sentiments, the current Bill includes an anti-provision which prohibits business owners from taking adverse action against employees who exercise their rights under the Bill.)

While restaurant and bar owners may claims that their "business autonomy" is restricted by bills such as HB 4733, it is important to note that such business have never been granted free reign over their operations. For example, there are restrictions imposed on restaurants/bars with respect to whom alcohol can be served and when. Such businesses must pay their employees at least minimum wage (with some exceptions, such as waitstaff) and obey health and sanitation regulations with respect to how food is stored and prepared. Few would argue that such laws and regulations are necessary to protect the safety and well-being of employees and consumers.

Continue reading "Michigan "Smoke-Free Workplace" Bill Passes House, Moves to Senate" »

I am back from a pleasant hiatus. My children, both living out of town, blessed us with two new grandchildren this summer--a grand-daughter and a grandson--and the last few months have been occupied with enjoyable travel.

The U. S. District Court for the Middle District of Georgia was more active than I was, however, when it recently held that a physician who unsuccessfully sued the hospital where he worked, and some other physicians on staff, must pay the defendants' attorneys fees and costs because he had signed an "Applicant's Consent and Release" when he was applying for medical staff privileges at the defendant hospital. The amount to be paid is yet to be determined but could be substantial because there were 3 defendants seeking fees, including two physicians and their group professional corporation.

In the case of Adeduntan v. Hospital Auth. of Clark City, No.3:04-CV-065 (CDL)(M.D. Ga. July 31, 2008), arising out of the medical peer review of plaintiff's performance during an emergency abdominal aortic aneuryism procedure, the Court found that "...[Dr. Adeduntan] was required to execute the form in order to apply for mediacal staff appointment and privileges at Athens Regional and that [his] signature appears on multiple copies."

The language of the document provided:

"If...I [Dr. Azeez Adeduntan] institute legal action against the Hospital [Athens Regional] and/or its Medical Staff members and do not prevail, I agree to reimburse the Hospital and any Medical Staff members named in the action for any and all costs incurred in defending the legal action, including reasonable attorneys fees."

Recognizing that credentialing litigation is on the rise because of numerous decisions allowing such disputes to move into the courts, and most American courts cannot impose attorney fee obligations on losing litigants, in the absence of a contractual requirement, I would expect that most staff privilege applications would be promptly amended to include such language.

Depending on the applicant's specialty, and state law, the language may or may not be negotiable. A good healthcare attorney, however, is essential to review the application, research the issue and attempt to obtain any modifications. As always, even the most innocuously appearing document--a simple "application" may contain time-bombs that lay dormant for many years.

As I reported earlier, 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 State of Michigan can 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--instead of 44%--a significant amount of money since most recoveries are in the tens of millions of dollars or more!!

However, on December 21, 2006, the U.S, Department of Health and Human Services/Office of Inspector General ("HHS/OIG") advised the state, by letter, that its Medicaid False Claims Act was NOT "DRA compliant" (that is, a mirror image of the federal False Claims Act).

In order to comply, all that was needed was a simple bill adding civil monetary penalties of at least $5000 for each violation and making one other technical amendment. Since the revisions would not have had any negative fiscal impact on the state and would have had a potentially tremendous positive impact in the event of any recovery, one would have expected Representative Law to quickly introduce a clarification/modification bill and obtain quick passage--after all, the State would most certainly not turn down the opportunity to reverse the flow of funds from Michigan to Washington??

Unfortunately, in 2006 and 2007, petty partisan bickering was rampant in the Michigan Legislature--we were paralyzed by the absurd budget fight and leadership was non-existent.

Rep. Law, finally, on September 17, 2007, introduced a one-page bill. The date of introduction is significant. In addition to being a Saturday, the day of the Notre Dame-UM football game (a game, I suspect, Rep. Law, a Notre Dame grad, was attending), it was three days before Ray Sayeh, then a WXYZ-TV investigative reporter, had scheduled (at my request) an interview with the representative to discuss the failure to take action on the revisions.

Unfortunately, again because of partisanship and Democratic control of the House of Representatives, the bill went nowhere while the Attorney General continued to obtain recoveries from fraud-feasors and the unclaimed 10% incentive was lost to Washington.

Finally, on February 19, 2008, Representative Marc Courveau (D., Northville) introduced HB 5757. The amended FCA, as presented in HB 5757, would allow the Michigan FCA to become DRA compliant. Once again, the small changes made by HB 5757, as required by the federal HHS/OIG., would cost the state nothing in administrative or other costs and would bring millions of dollars in the future back from Washington.

HB 5757 quickly passed the House with NO opposition and was sent to the Senate.

Tragically, because of continued political maneuvering, the Bill sits in the Judiciary Committee.

It seems that Rep. Courveau was elected at the expense of a Republican and the leadership of the Judiciary Committee and Senate Majority Leader, Mike Bishop will not allow this largely unopposed, fiscally responsible bill, to be brought up at the committee or floor level because it would give "points" to Rep. Courveau!!!!

The State of Michigan is in a deep recession/depression, unemployment sits at 8.5%, the highest in the nation, GM is in deep trouble, the City of Detroit is selling assets and landmarks--such at the Detroit-Windsor tunnel--and the Legislature cannot pass a one-page bill that will bring money to the state and its Medicaid recipients.

This Bill is under the radar, unfortunately--Ray (now Rez) Sayeh has joined CNN International and is posted in Pakistan, columnists such as Brian Dickerson and others have been unresponsive despite my entreaties, my solicitations to the Legislature and the use of my contacts have been unavailing.

I am frustrated. Medicaid fraud is rampant, the Attorney General is acting diligently in pursuing the cheaters, and we have been filing qui tam cases under the new Act, but even if all of these activities are successful--and they will be--the State will not receive the full benefit of its recoveries!!!

I will not stop my efforts, but it will take action by my readers to move this along. Sen. Mike Bishop may be contacted by email and his office phone number is (517) 373-2417.

The other Senators on the Judiciary Committee may be emailed at:

senwkuipers@senate.michigan.gov Sen. Kuipers - Chair

senacropsey@senate.michigan.gov Sen. Cropsey

senasanborn@senate.michigan.gov Sen. Sanborn

senbpatterson@senate.michigan.gov Sen. Patterson

sengwhitmer@senate.michigan.gov Sen. Whitmer - minority vice-chair

senhclarke@senate.michigan.gov Sen. Clarke

senmprusi@senate.michigan.gov Sen. Prusi

The House and Senate this week voted by substantial margins to override President Bush’s veto of a Medicare package (H.R. 6331) that blocks the over 10% reimbursement cut to physicians that went into effect July 1 (See original Alert below.)

The U.S. Senate, this afternoon, passed the Medicare Improvements for Patients and Providers Act of 2008 (H.R. 6331) upon voting to end the Republican filibuster with 69 affirmative votes for cloture. The Senators had agreed that the bill would be considered passed if cloture was invoked. The Bill, among other things, eliminates the proposed 10.6% physician pay cut, instead instituting a 1.1% increase effective January 1, 2009.

Senator Ted Kennedy made his first appearance on the Senate Floor since his brain tumor was discovered.

Monica Navarro pointed out to me that WPS Medicare Part B e-News today reported that independent laboratories may no longer (for dates of service on or after July 1, 2008) bill Medicare for the technical component (TC) of physician pathology services furnished to patients of a covered hospital, regardless of the beneficiary's hospitalization status (inpatient or outpatient) on the date that the service was performed.

WPS indicated that this ruling has its genesis In the final physician fee schedule regulation published in the Federal Register on November 2, 1999, where the Centers for Medicare & Medicaid Services (CMS) stated that it would implement a policy to pay only the hospital for the TC of physician pathology services furnished to hospital patients. Prior to this proposal, any independent laboratory could bill the carrier under the physician fee schedule for the TC of physician pathology services for hospital patients. At the request of the industry, to allow independent laboratories and hospitals sufficient time to negotiate arrangements the implementation of this rule was administratively delayed. Subsequent legislation formalized a moratorium on the implementation of the rule. As such, during this time, the carriers and, more recently, Medicare Administrative Contractors (MAC), have continued to pay for the TC of physician pathology services when an independent laboratory furnishes this service to an inpatient or outpatient of a covered hospital.

The most recent extension of the moratorium was established by the Medicare, Medicaid, and SCHIP Extension Act (MMSEA). Section 104 of the MMSEA expired on June 30, 2008, thus ending the moratorium.

Our firm published a series of articles in the Summer, 2008 edition of Michigan Medical Law Report.

Michigan Medical Law Report is published by Dolan Media Company. Frank, Haron, Weiner & Navarro was asked to contribute to this prestigious magazine sent to 20,000 practitioners.

Michelle Bayer's article on Internet pharmacies is entitled "They're efficient, but mail-order Internet pharmacies have intricate legal requirements."

Mercedes Varasteh's article entitled "Joint Commission standard fosters collaboration between medical staffs, hospitals" covered the application of MS 120.

Louis Szura wrote on revisions to Section 179 of the Internal Revenue Code in an article, "Economic Stimulus Act offers big tax breaks for health care providers."

David Haron instructed providers on the federal False Claims Act in "Exposing fraud and abuse--what a private citizen may do."

Finally, Melinda Balian and Ross Hammersley gave excellent employment related information in "Employees--your biggest risk and your biggest ally."

Fortune Magazine recently included comments from Jeff Kindler, CEO of Pfizer, the major pharmaceutical company, that approximately half of written prescriptions go unfilled. Other reports have indicated that the reason is inability to pay by seniors, difficulty finding or travelling to pharmacies (and the cost of gas doesn't help), forgetfulness and problems at the pharmacy, including language difficulties.

Such problems cause significant difficulties for patients. The obvious problem is the loss of the curative properties of prescribed drugs. Less apparent is the effect these unfilled prescriptions have on the efficacy of drugs--that is, when the patients return to their physician for follow-up care--and the previously diagnosed condition has not been alleviated or affected, embarrassed patients often do not advise the physician that the original prescription was not filled. This leads to inaccurate future diagnoses or, worse, prescriptions for more potent dosages--strength that might not have been needed had the original prescription been filled and used. Increased use of some drugs can also lead to immunities and weakening of the efficacy of these drugs.

Why is this happening in America? Why are the drug companies encouraging physicians to write more and more prescriptions--often at higher and higher dosages?

What can be done to encourage and assist patients to fill their prescriptions and to force physicians to follow-up with the patients? One solution is better follow-up calls by physician office staff. Another interesting possibility is office drug drug dispensing using a service/product such as Dispensing Solutions which is legal in all states (with some restrictions in 5 states) and approved by the FDA. More information is available at the Dispensing Solution web-site.

In May, I commented upon the oral arguments presented to the Michigan Supreme Court in the appeal from the Michigan Court of Appeals decision in the case of Miller v Allstate.

This case raised the issue of whether a physical therapy clinic, incorporated under the Michigan Business Corporation Act, was lawfully rendering services entitling it to reimbursement from its auto-accident injured patient's No-fault insurance carrier.

Allstate Insurance Company argued that a physical therapy clinic-a medical service provider-needed to incorporate under Michigan's Professional Service Corporation Act in order to lawfully render services under Michigan's No-Fault auto-insurance act, even though the physical therapist actually performing the services was a lawfully licensed physical therapist.

The lower courts permitted the claim and the Supreme Court issued its opinion affirming those decisions on July 2, 2008, although not for the same reason the lower courts did.

Essentially, the Supreme Court held that once a corporation, of any sort, files its Articles of Incorporation with the State, it is conclusively determined that the incorporation is lawful--unless the state Attorney General successfully challenges that incorporation in a court proceeding. this conclusion was based on statutory language and the Supreme Court's interpretation of long-standing Michigan law.

I believe the result in this case is correct (although one of the two concurring Justices, Elizabeth Weaver, believes that the Court's tortured logic in reaching the decision was incorrect because of a long-standing battle she has on the Court's Standing decisional process (a topic for some law professor's blog some day))because, as the Court stated, allowing challenges to every corporation in every suit brought by a corporation would affect the very stability of the economy. Every patient would have to verify compliance by every provider with every corporate statute before accepting treatment and whether payment would be made would depend on the creativity of every insurance lawyer in every case when payment decisions were made.

For once, the Supreme Court majority seems to have gotten it right.

Let's see if the Michigan Legislature and the Department of Labor and Economic Growth follow suit and picks up on this decision and clarifies the incorporation requirements as Michael Hamblin of our firm has described on his blog, Michigan Business Lawyer, for peripheral medical and other licensed providers.

Until they do, however, every licensed practitioner and other individuals in Michigan must immediately consult competent health care business lawyers such as my firm, to review their corporate status and to consider re-incorporation as Professional Corporations if permitted and advisable.

HAVE A HAPPY AND SAFE 4TH OF JULY HOLIDAY---AND GOD BLESS AND KEEP OUR TROOPS AND THEIR FAMILIES. LET'S BRING THEM HOME SOON!!!

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.

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.

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.

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.

The Michigan Supreme Court recently heard oral arguments in an important case involving the proper incorporation of health care corporations that provide licensed services to the public. The case is Miller v. Allstate. The major issue Miller is whether those providing a service requiring a license must incorporate under the Michigan Professional Services Corporation Act (PSCA) instead of under the Michigan Business Corporation Act (BCA). The Michigan Supreme Court is reviewing the decision of the Michigan Court of Appeals ruled, which ruled that under the language of the PSCA, any licensed professional (including a health care professional) who incorporates must do so under the PSCA and not the BCA.

The Miller decision by the Michigan Court of Appeals has caused quite a stir in the Michigan legal and business communities. It has caught everyone off guard, including the State of Michigan. The State of Michigan has taken the formal position that the Miller decision goes contrary to the plain language and purposes of the business incorporation acts in Michigan, as well as the accepted interpretation of those acts by everyone, including the Michigan Attorney General and the State agency that administers corporate filings.

To understand why the Miller decision has caused such an uproar, it is necessary to understand the history of incorporating professional service corporations in Michigan. Traditionally, only members of the “learned professions” such as doctors and lawyers have been required to incorporate under the PSCA. In the past, any other kind of business that provided professional or personal services had the choice of incorporating under the PSCA or the BCA. This was true even if a license was required to provide the services in question. The Miller decision has changed all of this.

The Miller case concerns a patient who was referred to a physical therapy clinic for treatments. Licensed physical therapists administered the treatments pursuant to medical prescriptions that the patient’s doctor’s properly issued. The physical therapy company was incorporated under the BCA. When Allstate was billed for the patient’s treatments, it refused to pay, because the physical therapy company was supposedly improperly incorporated under the BCA instead of the PSCA.

Allstate claimed that the physical therapy company should have incorporated under the PSCA since its business involves providing professional services that require a license. Allstate took the position that that the physical therapy company’s incorporation was defective because it was incorporated under the BCA instead of the PSCA. Allstate claimed that this alleged technical deficiency gave it the legal right to refuse the charges from the physical Therapy company.

There are a number of interesting and important legal issues involved in the Miller case. But, the issue of which statute professionals should incorporate their businesses under has received the most press. This issue also probably has the most potential to disrupt the businesses that have been incorporated under the BCA and not the PSCA. It appears that a ruling by the Michigan Supreme Court in favor of Allstate point could cause Michigan businesses that incorporated under the BCA and provide licensed services significant difficulties. Some of these difficulties might include difficulty collecting receivables and possible personal shareholder liability for company obligations.

A recent pattern of expert witness intimidation has emerged across the country. Some physicians encouraged by ambitious (to say the least) attorneys, and some professional organizations, are apparently concerned that expert testimony for plaintiffs in medical malpractice cases poses a "threat" to the administration of justice.

John Vail of the American Association of Justice's Center for Constitutional Justice believes that the fury of malpractice defendant physicians, funneled towards colleagues who testify that malpractice did indeed occur, and catalyzed by insurance company pressure to curtail malpractice litigation, has produced new weapons in the war against malpractice plaintiffs: peer review of medical expert testimony and scrutiny of that testimony by licensure boards.

Some states have defined such testimony as the "practice of medicine" and have permitted licensure boards to oversee and consider the testimony in licensing actions. These actions threaten the free flow of information to the courts and chill speech protected by the First Amendment. Wisely, according to Mr. Vail, courts are acting to dampen the threat.

However, credentialing committees and aggressive peer review may still be expected to consider such testimony as long as the AMA and other professional organizations and societies continue to campaign for medical liability "reform" and rail against "trial lawyers."

I am firmly against frivolous lawsuits. When I was chair person of the State Bar of Michigan Standing Committee on Professionalism, our committee addressed this issue, improper advertising by lawyers and lawyer competency, but believed, correctly, that our present Michigan Rules of Professional Conduct, various statutes-, the State Bar of Michigan-and an active Court System--adequately deals with these concerns.

However, the existing court system and vigilant defense lawyers (who also provide services in "trials" and are properly referred to as "trial lawyers" too) have many tools at their disposal to deal with such actions. On the other hand, I believe that physicians and other medical professionals should be able, without fear of retaliation, to support activity designed to compensate victims of malpractice and incompetence and to improve the quality of health care in this country (where the Institute of Medicine has reported that over 98,000 persons die annually from medical errors).

The vast majority of physicians diligently observe the Hippocratic Oath every day in their practices and, of course, care about the quality of services they provide to their patients. Those who don't should be dealt with firmly.

Any physician threatened with adverse or retaliatory consequences for testifying truthfully and in good-faith in a malpractice action should seek the representation of a competent health care lawyer immediately.

I would like to introduce myself and my new HEALTH CARE LAWYER BLOG. I have been practicing business and health related transactional, regulatory and litigation law since 1969 when I graduated from the University of Michigan Law School and joined a firm in Detroit (after a stint as law clerk to the Chief Judge of the Michigan Court of Appeals). Presently, I am a Principal Member of Frank, Haron, Weiner and Navarro, P.L.C., a boutique law firm in Troy, Michigan, a northern suburb of Detroit. I have been named a Super Lawyer for 2007 by Law & Politics Magazine and am active in the community and the Bar Association.

Health Care is the number one industry in the United States and certainly in Michigan where most other industries are in the doldrums. There is more construction in Michigan in the health care field than any other (except, perhaps, casinos!) and the issues -- regulatory and transactional-are immense. Recently, my partner, Monica Navarro, and I taught a Health Care Law Class at Cooley Law School in Auburn Hills, Michigan. The subject, taught from a 1400 page text book covered everything from the definition of disease to the drug industry to antitrust considerations to death and dying. The students were fascinated by the breadth and scope of the subject--as were we when we looked at the text book. Given the attention the "health care crisis" is receiving in the current political campaign and the rising cost of health care in America and throughout the world, the subject--and this Blog--will have a long life.

Plese return often for insight into the area, information on subjects new to you and for detailed information in areas that will be of assistance to medical practitioners, attorneys and the general public.