The medical necessity of durable medical equipment (“DME”) billed to the Medicare Program may have no relevance to a court’s determination of whether a DME supplier submitted claims based on fraudulent Certificates of Medical Necessity (“CMN”).   The Sixth Circuit Court of Appeal recently upheld a conviction of aiding and abetting Medicare fraud when a DME supplier submitted apparent fraudulent CMNs, even though the DME supplier might have been able to prove the medical necessity of the DME.

In United States v. Davis, Nos. 06-5073/5074, decided June 22, 2007, the Sixth Circuit affirmed a conviction on twelve (12) counts of aiding and abetting Medicare fraud. The convictions of an owner and an employee of the DME supplier stemmed from the supplier’s submitting claims to the Medicare Program for oxygen equipment that had been provided to miners with black lung disease.

Continue Reading Medically Necessary DME May Not Save Supplier From Fraud Conviction

On July 24th, Representative Pete Stark (D- CA) introduced an amendment to The Children’s Health and Medicare Protection Act of 2007 that would eliminate the whole hospital exception in the Federal physician self-referral law, otherwise known as the Stark Law.

Specifically, Section 651 of The Children’s Health and Medicare Protection Act of 2007 would eliminate the whole hospital exception in the Stark Law which would result in physicians being prohibited from referring Medicare patients to hospitals in which they have ownership interest. This amendment would apply to all hospitals, and not only physician-owned specialty hospitals. However, the amendment would grandfather hospitals that were in operation with Medicare provider agreements as of the date of introduction of the bill which is July 24, 2007.

Continue Reading Congressman Pete Stark Takes Aim at Whole Hospital Exception in the Stark Law

In June, 2007, the United State Court of Appeals for the District of Columbia Circuit affirmed the dismissal of a lawsuit brought by a physician association, alleging that the “fair market value safe harbor” under the federal Stark law developed by the Centers for Medicare and Medicaid Services (“CMS”) is invalid because it was implemented without following proper procedure. The court did not rule on the merits of the association’s claim. Instead, the court decided that the association did not have standing to bring the suit because even if the court were to declare the “safe harbor” invalid, the substance of the “safe harbor” would likely still be relied on to demonstrate that physicians who refer Medicare and Medicaid patients to “designated health services” (DHS) providers with whom they have a financial relationship are being paid fair market value by the DHS providers for any contracted services they perform.

Continue Reading D.C. Circuit Upholds Dismissal of Lawsuit Alleging Invalidity of Stark Exception

On April 23, 2006, Twentieth Century Fox Film Corporation aired an episode of “Family Guy” entitled “Peterotica.” In this episode, Peter Griffin, who was an Archie Bunker-like character, enters a porn shop with his friends and comments that the porn shop is cleaner than he expected. One of Peter’s friends explains that Carol Burnett works part-time as a janitor. At this point, an animated character resembling the “Charwoman” from the Carol Burnett Show appears mopping the floor near several blow-up dolls and a rack of “XXX” movies. At this point, a slightly modified version of Carol Burnett’s theme song is playing in the background. One of Peter’s friends remarks, “You know, when she tugged her ear at the end of the show, she was really saying good night to her mom.” Another friend responded, “I wonder what she tugged to say good night to her dad?”

Continue Reading Carol Burnett Action Tossed Based On Fair Use

On July 2, 2007, the Centers for Medicare and Medicaid Services (CMS) posted on its website the proposed updates to the Medicare Physician Fee Schedule for 2008. These proposed changes included a number of significant revisions to the federal physician self-referral prohibition otherwise known as the Stark Law. This article includes a brief summary of some of the proposed changes to the Stark Law regulations. The Kean Miller healthcare regulatory group will issue an expanded summary of the changes to the Stark Law regulations included in the proposed changes for 2008.

Continue Reading CMS Includes Proposed Stark Law Changes in 2008 Medicare Physician Fee Schedule Proposed Rules

Come this September, employers are facing a new EEO-1 form and a new filing format.  Therefore, employers are well advised to get a head start on this annual reporting task.    The new rules relating to EEO-1s are really two-fold:  EEO-1s must now be filed on-line; and some of the job, ethnicity, and race categories have been modified.

Continue Reading New Rules Regarding EEO-1s

The New Orleans Times Picayune posted a story to their web site on July 3, 2007 at 7:45 PM stating that the Corps of Engineers has formally recommended to Congress that the Mississippi River – Gulf Outlet (“MR-GO”) be closed. MR-GO is a 60 mile long shipping channel running from the Louisiana coast to the Industrial Canal in New Orleans. Construction on MR-GO started in 1958 and was completed in 1968. The canal was designed to be 36 feet deep and 500 feet wide.

Continue Reading Corps Recommends Closing MR-GO

On May 29, 2007, the Supreme Court handed down Ledbetter v. Goodyear Tire & Rubber Col, Inc., – U.S. –, 127 S.Ct. 2162 (2007), a decision favorable to employers and enforcing the timeliness requirements under Title VII for bringing a claim for alleged discriminatory pay. The court ruled that an employer’s decision setting an employee’s pay or raise within an otherwise neutral pay structure was a “discrete act,” triggering the running of the limitations period under Title VII. The plaintiff argued unsuccessfully that the pay claim was always timely because the disparate pay continued and compounded throughout her employment.

Continue Reading Title VII Time Limits For Claim For Alleged Discriminatory Pay Enforced

Throughout the Corps of Engineers’ history of building public works projects, they have sought to protect or enhance property values and economic interests of various groups. Often fixing one problem causes another. Sometimes those new problems are later referred to as “unintended consequences.”  Many times those supposed “unintended consequences” are known in advance. Nevertheless, these economic shifts often occur without warning or compensation to the people imperiled or damaged. This is the power and burden that goes with building large public works projects. It also presents the legal question of when should a property owner whose interests are imperiled or damaged by public works projects be compensated for such an economic shift.

Continue Reading Corps of Engineers Increases French Quarter Flood Risk

On June 8, 2007, a three judge panel of the District of Columbia Court of Appeal issued a decision in NRDC v. EPA, vacating both the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule and the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”). The decision will not become effective (meaning the CISWI and Boiler MACT Rules are still effective), until legal delays for rehearing and/or appeal have run. Moreover, two of the three judges wrote concurring opinions which strongly suggest that a stay order, with conditions, is likely to be issued if the parties so request it. With the September 13, 2007, Boiler MACT compliance deadline looming, EPA needs to provide prompt guidance to the thousands of regulated entities on their compliance obligations in light of the decision.

Continue Reading Boiler MACT Rule Vacated, But Not (Yet) Gone!