Recent Whistleblower Case May Change Way Relator Fee Calculated

SoundPractice.net recently reported an interesting whistleblower lawsuit coming out of the Disctrict Court of Pennsylvania. In United States ex rel. Nudelman v.International Rehabilitation Associates Inc., E.D. Pa., No. 00-1837, a "whistleblower" asked that the percentage award be based not only on the value of the false claims submitted, but also include the cost of the corporate integrity agreement ("CIA") used to monitor the provider after the settlement.

The District Court held for the whistleblower (commonly referred to as the relator). The Court ruled that the relator's fee could be based on both the value of the False Claims and the cost of the corporate integrity agreement (CIA). This boosted the amount used to calculate the recovery by $1.65M.

I haven't located the case yet - but will plan to post an update if I locate a copy.

FS&B Attorneys Selected for 2006 Best Lawyers in America

Just a quick note to congratulate Tom Flaherty, Don Sensabaugh, Mike Bonasso and Jeff Wakefield on being selected by their peers as four of the Best Lawyers in America in 2006. They will be included in the 2006 edition of The Best Lawyers in America.

According to a press release our firm received from The Best Lawyers in America:

The new 12th edition marks the shift of Best Lawyers from a biennial to an annual publication. Given the speed of changes in the legal marketplace – which grows bigger, more complex, and more fluid every year – such a shift was inevitable. Advances in technology, such as online voting, have now made it possible.

Changes in the new edition show clearly why the shift to annual publication was necessary: 25 new specialties have been added, bringing the total to 57.

Responsiveness to the legal community is one reason why Best Lawyers is widely regarded – by both the profession and the public – as the definitive guide to legal excellence in the United States. Best Lawyers has been featured in The New York Times, Forbes, and The Washington Post, and is the basis of more than 50 “best lawyers” features in regional newspapers and magazines. ALM has chosen our lists to be excerpted in Corporate Counsel and other ALM publications, calling Best Lawyers “the most respected referral list of attorneys in practice.”

The standard for inclusion in Best Lawyers is as rigorous as it has always been. More than 18,500 leading attorneys throughout the country cast more than a million votes on the legal abilities of their colleagues. Because no fee or purchase is required to be listed, inclusion in Best Lawyers is still considered a singular honor.

Best Lawyers' online presence continues to grow. In the past year, the site has received more than a million and a half hits and responded to more than 700,000 requests for lawyer searches. 8,796 listed attorneys, representing 876 law firms, have linked their firm web pages or bios to BestLawyers.com.

Hospital Sues Plaintiff Med-Mal Firm Over HIPAA Issue

My parter Sam Fox alerted me to a New Jersey lawsuit, Community Hospital Group v. Blume Goldfaden, which involves the a HIPAA issue involving the release of pap smear lab reports of non-party patients by JFK Medical Center in Edison, NJ to an attorney at Blume Goldfaden who was representing a client in a pending medical malpractice lawsuit.

According the to article appearing on Law.com:

The dispute began in 2003 when JFK realized it had misread three years of Pap smears for D.B., resulting in a third-year delay in diagnosing her cervical cancer. D.B. hired Blume Goldfaden partner Carol Forte to sue JFK. That suit, D.B. v. Palermo, MID-L-8396-03, is pending.

Concerned over what happened with D.B.'s samples, JFK sent 9,253 slides -- every Pap smear done for three years starting in 2000 -- to an outside laboratory for an independent review. The review uncovered 107 other "discrepancies," or false negatives.

In late November 2003, two women whose tests were misread, referred to as H.D. and N.B., received identical letters from Forte stating she was investigating D.B.'s claim against JFK for misreading samples. The letter went on to say that "it has come to my attention that you may have information about the competency of the pathology department." It asked them to "please contact me to discuss the information you may have."

H.D. and N.B. -- upset that their private medical information had fallen into the hands of a law firm without their consent -- told JFK they wanted answers.

According to the article, later it was learned that the information about the two non-party patients was released to the attorney representing the client in the pending medical malpractice lawsuit against JFK via a cicuitious route. The hospital notified a local gynecologist, Lawrence Seitzman of possible misread pap smears for 3 of his patients. Two of the patients were the H.D. and N.B. Dr. Seitzman met with the third patient and gave her a copy of the letter. The third patient then went to see her attorney about the matter who then sent the letter to Blume Goldfaden for a possible referral.

The article states:

On April 2, 2004, Superior Court Judge Travis Francis dismissed the suit, finding the hospital lacked standing to assert privacy claims on behalf of third parties and that HIPAA creates no private right of action. He ruled that only H.D. and N.B. could sue over the disclosure of their medical records and that the hospital "cannot attempt to use HIPAA as an offensive weapon against possible malpractice suits." But Francis denied Blume Goldfaden's request for fees against JFK for filing a frivolous suit, and both sides appealed.

The case is now on appeal and arguments were heard on September 27 before the NJ Superior Court, Appellate Division. The arguments raised issues about the role of lawyers in protecting protected health information under HIPAA. Amici briefs were filed by the Association of Trial Lawyers of Amarica-NJ and the Trial Attorneys of New Jersey.

This will be an interesting decision to watch. It also illustrates an issue I often address with my health care clients about the unlimited ways in which protected health information can get released from their hospital, facility or medical practice. One of the most important roles a facility privacy officer is to learn how protected health information moves about within the facility, who has access and what third parties do with the information. Without the basic understanding of this information no policies or procedures to protect information can be effective.

New Stark Exception and F&A Safe Harbor for Electronic Health Records

As posted earlier, today's Federal Register contains two new proposed rules on a new Stark exceptions and fraud and abuse safe harbor for technology issues involving electronic prescribing and electronic health record arrangements between providers. Teh new proposed rules are as follows:

(1) Stark Exception for Certain Electronic Prescribing and Electronic Health Records Arrangements. Access the proposed Stark exception.

(2) Fraud and Abuse Safe Harbor for Certain Electronic Prescribing Arrangements have been published in today's Federal Register. Access the proposed fraud and abuse safe harbor.

Thanks to AHLA HIT for the tip on the issuance of the new rules.

Under Promise & Over Deliver: Why Patients Sue Doctors

Interesting reading from the Law & Medicine section of SoundPractice.net.

A couple of my favorite quotes from the post:

Physicians are perceived by the public as over-promising and under-delivering when it comes to health care. Perhaps part of the problem is that we have been so successful at treating some acute conditions, that patients live long enough to suffer from the chronic conditions that we do not treat as effectively.

I think part of the cause of malpractice is the public's need to believe in their doctors, and their disappointment when bad things happen. The lack of transparency and communication between physicians and patients only adds to the size of the gap that devastates the family when outcomes are poor.

Thanks to Doulicia who is editor for Grand Rounds this week for pointing out this post and the information available at SoundPractice.net.

WVHCA, HCA, Putnam General, LifePoint: News Article Swirl Around Hospital Sale and Putnam Medical Malpractice Lawsuit

The certificates of need involving the approval of the sale of 5 HCA hospitals to LifePoint in West Virginia is getting a lot of press over the last couple of days. Much of the press is linked to the pending medical malpractice lawsuits involving Dr. King and Putnam General Hospital.

The AP seems to make a lot of fuss over the connections between the pending medical malpractice lawsuits and the acquisition/certificates of need approval process. The AP even bring the Senator Frist SEC investigation into the article. I don't see the connection. I guess it might be an attempt to make CON regulatory law reporting more exciting.

HHS Awards Contracts to Advance Nationwide Interoperable HIT

HHS Press Release - October 6, 2005:
The Department of Health and Human Services (HHS) today awarded three contracts totaling $17.5 million to public-private groups that will accelerate the adoption of health information technology (health IT) and the secure portability of health information across the U.S. These groups will form strategic partnerships to develop the building blocks necessary for achieving the President’s goal of widespread adoption of interoperable electronic health records (EHR) within 10 years.

Anonymous Blogger Remains Anonymous

Anonymous blogger remains anonymous!

I haven't read the full decision issued by the Delaware Supreme Court in the matter of John Doe No. 1 v. Patrick Cahill and Julia Cahill, No. 266 (October 5, 2005). You can check out the latest news articles on the decision here. Following is an excerpt from a summary appearing on Yahoo news. The article states:

"In a 34-page opinion, the justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News."

FRCA, FACTA, GLBA and the California Courts

Craig Williams over at May It Please The Court reports on a recent privacy decision involving what the court refers to as the convergence of the Fair Credit Reporting Act (FCRA) as amended by the Fair and Accurate Credit Transactions Act of 2003(FACTA), Gramm Leach Bliley Act (GLBA) and California's Financial Information Privacy Act.

All of these legislative/regulatory acts were created to protect the treatment of personal consumer information and how such information can and can't be used by financial service businesses. As stated by the court,

"these four legislative enactments generally seek to govern the treatment of personal information albeit to varying degrees. In FCRA, FACTA and GLBA, Congress created a statutory framework that seeks tostrike a balance between providing citizens affordable financial services while protecting them against invasions of privacy and the misuse of personal information."

California's Financial Information Privacy Act was passed to provide the citizens of California with more stringent protections than those provided by FCRA (nka FACTA) and GLBA.

The 9th Circuit previously held that federal laws preempted the more stringent state laws. Craig indicates that the 9th Circuit is unlikely to change its position if California's Attorney General decides to appeal the decision. As I recall one of the the reasons FCRA was amended to the new acronym FACTA was because the federal preemption provisions under FCRA were going to expire.

Check out the press release issued by the American Bankers Association.

HHS Announces Accelerating the Use of E-prescribing and Electronic Health Records

Today HHS announced the new regulations that are intended to support the adoption of e-prescribing and electronic health records. The press release states:

The Centers for Medicare and Medicaid Services (CMS) and the HHS Office of Inspector General (OIG) proposed rules announced today represent a unified effort to advance the goal of improving the health care of Medicare beneficiaries and all Americans through the use of e-prescribing and electronic health records systems.

CMS announced a new regulatory proposal that would create exceptions to the “physician self-referral” law. Currently, physicians in Medicare are prohibited from referring Medicare patients for certain health services to health care entities with which the physician has a financial relationship, unless an exception applies. Health care entities are also not allowed to bill Medicare for services that are furnished as a result of a prohibited referral.

These new proposals would allow hospitals and certain health care organizations to furnish hardware, software, and related training services to physicians for e-prescribing and electronic health records, particularly when the support involves systems that are “interoperable” and thus can exchange information effectively and securely among health care providers.

In a parallel action, the OIG announced proposed safe harbors for arrangements involving the donation of technology for e-prescribing and electronic health records. Arrangements for the provision of items and services that meet the requirements of the safe harbors would be exempt from enforcement action under the Federal anti-kickback statute.

Stay tuned! The proposed rules will be published in the October 5th edition of the Federal Register. Public comments will be accepted for 60 days.

Thanks to the HIPAA Blog for pointing me to the press release.

UPDATE (10/6/05): Today I received notice that the OIG posted a pre-publication copy of the proposed rule for a Safe Harbor for Certain Electronic Prescribing Arrangements Under the Anti-Kickback Statute. The official version is scheduled for publication in the Federal Register on Tuesday, October 11, 2005.

To get to the proposed rule point your browser here: http://www.oig.hhs.gov/authorities/docs/05/100605E-PrescriberuleC.pdf

HIPAA Preemption Decision from the Louisiana Court of Appeals Decision

A State of Louisiana Court of Appeals First Circuit Decision looks at HIPAA preemption involving the state law process for obtaining medical and health records via subpeona under a criminal matter. The September 23, 2005 decision in State of Louisiana v. Virginia Downes, challenged the validity of a district attorney subpoena issued to obtained medical records and looks at whether or not the Administrative Simplification provisions under HIPAA preempt Louisiana's laws related to obtaining a lawful subpeona under La. R.S. 13:3715.1(B). The courts finds that it would not be impossible to comply with both federal (HIPAA) and state law requirements for obtaining records via subpoena, thus, no preemption.

Thanks to Alan Goldberg and the AHLA HIT listserve for the tip on this new decision. While looking for a link to Alan's webpage I also noticed his new blog called HealthLawyer.

Professor Elkins Gets a Mention on BlawgReview

Professor Jim Elkins’ “Strangers to Us All: Lawyers and Poetry” gets a mention on BlawgReview. Professor Elkins is a professor at the West Virginia University’s College of Law.

Dilbert's Look at Work Blogs

Blogging while at work gets a look by Dilbert. Blogging and blog related issues are quickly becoming the latest employment related legal issue - following on the heels of email and internet usage employment policies. If your company hasn't revised your employee handbook to include a blog policy you might want to consider adding a new policy.

Thanks to Scoble for the tip on today's Dilbert.

West Virginia Supreme Court Arguments on Certificate of Need Issues

Health care lawyers in West Virginia will be watching two appeals involving the certificate of need law being argued before the Supreme Court of Appeals of West Virginia this week. The West Virginia Health Care Authority is responsible for hearing and issuing certificate of need decisions to health care providers.

The briefs for the two arguments have now been posted on the Supreme Court of Appeals website and you can watch and hear the arguments via the court's webcast on October 4 & 5.

On October 4, 2005 the Supreme Court will hear the matter of Family Medical Imaging, LLC, et al. v. WV Health Care Authority, et al. This is an appeal from an Order from the Raleigh County Circuit Court upholding the WV Healthcare Authorities decision denying the petitioner's Certificate of Need for the use of an ultrasound machine. The Court affirmed the HCA's denial and the petitioners are seeking a reversal and approval for their application.

The briefs filed in this matter, including an amicus brief filed by the West Virginia Hospital Association and an intervenor brief filed by Raliegh General Hospital, can be found here.

On October 5, 2005, the Supreme Court will hear the matter of Fairmont General Hospital, Inc. v. WV Health Care Authority, et al. AND Fairmont General Hospital, Inc. v. WV Health Care Authority, et al. United Hospital Center, Inc. and West Virginia United Health System, Inc., and the West Virginia Health Care Authority, file separate petitions for appeal which have been consolidated. They appeal the Circuit Court's order reversing the Health Care Authority's decision to grant a certificate of need for the building of a replacement United Hospital eight miles from its present location.

The briefs filed in this matter can be found here.

HIPAA Administrative Simplification: Electronic Health Care Claims Attachment Proposed Rule Issued September 23, 2005

This in from Stanley Nachimson, Senior Technical Advisor, Office of Electronic Health Standards and Services at Centers for Medicare and Medicaid Services (CMS):

On September 23, 2005, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) adopts two new X12 transaction standards, an HL7 messaging standard to carry clinical information in the response transaction, and HL7 specifications for the content or “questions” that may be asked in each of the six attachment types. This proposed rule also adopts the Logical Observation Identifiers Names and Codes (LOINC) as a new HIPAA code set to be used to identify the questions and answers (attachment information). The standards allow for the transmission of structured or coded data, as well as images and text.

The proposed rule solicits comments from the affected industries on several key issues, including the adoption of LOINC and its use for the HIPAA transactions, the appropriateness of the six proposed attachment types, business requirements for attachments that would accompany the original claim (unsolicited attachments), and the cost-benefit implications of adopting this transaction set.

The public comment period is open until November 22, 2005.

Google Blog Search

If you are into blogs be sure to check out the new Google blog search which is now out in beta.

More Katrina Resource Information for Health Care Providers

The American Health Lawyers Assocation has created a special section on its website featuring additional Hurricane Katrina resource materials and links for health care providers, including federal and state government announcements and actions and insurer information.

Katrina Relief Effort: Information for Health Care Providers

Garlo Ward, a Texas health care law firm, has posted information about how Texas is handling some of the initial health care legal questions that have come up as a result of the number of individuals leaving Louisiana due to Katrina. Many of those individauls displaced by the hurricane are in need of community based health care related services, such as intermediate care facilities, home and community care, etc.

The post includes a copy of any email issued by the Private Providers Association of Texas (PPAT), the association representing for-profit and non-profit health care providers who provide community based services to those with mental retardation and other developmental disability.

Over the last week I have been impressed by the prompt response of Texas. However, Texas appears to be nearing capacity after having accepted over 220,000 hurricane victims.

Tonight's news in West Virginia reported the first arrival of displaced Louisiana residents via the West Virginia's 130th Airlift Wing. Other states are sure to follow and receive residents from Louisiana, many who will need continuing health care services. Many providers, associations, patients, etc. will have transfer of service and reimbursement related questions over the coming days and weeks.

Over the last few days I have had a number of conversations about how the transfer of hospital, nursing home, intermediate care and other types of health services will be handled from a reimbursement standard. CMS and Medicare have a Hurricane Katrina Information page, including a Q&A section that should be a starting point for information. It appears that CMS has issued a general waiver under Section 1135 of the SSA allowing HHS to waive Medicare, Medicaid and State CHIP requirements in time of national crisis. Following is a summary from the CMS information page:

Signed Waiver Under Section 1135 of the Social Security Act 9/1/2005
Section 1135 of the Social Security Act allows the Secretary of Health and Human Services to waive or modify certain Medicare, Medicaid, or State Children's Health Insurance Program requirements in order to protect the public health and welfare in times of national crisis. On Wednesday August 31, 2005 Secretary Levitt notified the Congress that he was invoking this authority, as a consequence of Hurricane Katrina, in order to protect the health and welfare of the public in areas impacted by this crisis. CMS is taking action consistent with this authority to ensure that the people in these areas receive all necessary health care services.

EMTALA, HIPAA and Katrina

Interesting discussion about whether or not claims and potential violations of the Emergency Medical Treatment and Labor Act (EMTALA) have occurred in the wake of Hurricane Katrina. I haven't looked into the legal aspects of a potential violations under the actual regulations and whether there is an exemption for disaster situations.

Also I received a special Hurricane Katrina Bulletin from CMS that discussed how health care providers can disclose medical and health information in medical emergencies without violating the HIPAA privacy regulations.

New Health Care Blog: HealthcareTomorrow

A new health care blog came across my screen today thanks to a post by Hospital Impact. The blog is called Healthcare Tomorrow and is authored by Andrew Barna, a young healthcare executive who is currently Director of Strategic Development for a Catholic hospital in the Bay Area.

According to Andrew, "the purpose of this blog is to discuss U.S. healthcare today and what we should be doing to create the healthcare delivery system we want for tomorrow. I am writing for healthcare professionals, commentators, and interested citizens. The posts are my own and do not represent the views of my employer."

I especially liked Andrew's description of himself as a "young healthcare executive with at least 30 years of healthcare experience ahead of me." It's great to see someone young recognizing the value of looking forward. All too often we only look to (and value) those with experience from the past and don't always recognize those looking to create something better for the future.

I was intrigued by Andrew's first post on July 27 regarding the Sorry Works! Coalition. I recently spent some time advising a health care client on the impact a new "I'm Sorry" bill that passed the West Virginia legislation during the 2005 Legislative Session iwll have on malpractice in our state. This particular health care provider was interested in the scope of what could and should not be said during the apology after an adverse event or medical error.