Articles Posted in Health Law

On June 11 we posted that the American Board of Internal Medicine (ABIM) had immediately suspended the board certifications of 139 physicians. Since that time, our office has submitted a series of written submissions and had other communications with the ABIM’s counsel in order to clarify that the “suspensions” were actually non-final recommended actions rather than immediate suspensions. In our June 18 blog entry, we announced that the notation, “Under Appeal – Suspension is not final” had been added to each of the affected physician’s entries on the ABIM website. Although this was a significant advancement, we remained concerned that ABIM’s language could cause irreparable damage to our clients’ staff privileges, employment agreements, fellowship programs and relationships with third party payors.

As a result of our efforts on behalf of our clients, last Friday (July 2), ABIM clarified the affected physicians’ entries on its website. Now these entries clearly state “Suspension Recommended” with the comment “Under Appeal – Suspension is not final.” We believe that this clarification will allow our clients to pursue their appeals without the threat of immediate loss of employment or loss of payor relationships. We are encouraged by this advancement and will continue to strive for a positive solution through communication with ABIM.

If you have received a notice of suspension by ABIM and would like assistance with the ABIM appeals process, please contact Andrew B. Wachler, Laura C. Range, or Alicia B. Chandler at 248-544-0888.

As noted in our June 11 blog entry, the American Board of Internal Medicine (ABIM) recently took unprecedented action in immediately suspending the board certifications of 139 physicians. We have been in communication with the ABIM urging them to characterize the action as non-final recommended action pending appeal rather than an immediate suspension. Our intent is to avoid the irreparable impact that an immediate suspension will have on our clients’ staff privileges and relationship with third party payors. We have submitted legal support for this position, and we hope to work with the ABIM to effectuate a more reasonable and thought out solution.

As of today, the following notation has been added to each of the affected physician’s entries on the ABIM website: “Under Appeal – Suspension not final.” This is a significant advancement for all parties involved. We are hopeful that we will be able to effectuate a workable solution through further communication and the appeals process.

For more updated information, please visit the Wall Street Journal’s health blog.

The American Board of Internal Medicine (ABIM) has filed suits against 5 physicians for alleged copyright infringement, the misappropriation of trade secrets, and breach of contract. In addition, ABIM immediately suspended or revoked a total of 139 physicians’ board certification. The ABIM is an organization that certifies internal-medicine specialists and sub-specialists. The organization alleges that the physicians solicited or shared confidential examination questions used to certify doctors in internal medicine and its subspecialties. The Wall Street Journal reported that the law suits stem from participation in Arora Board Review, an independent test review course. Last year, ABIM sued Arora alleging that Arora instructors told class participants that the review questions were from actual certification exams and encouraged them to inform the company of additional questions they remembered after taking the exam.

Our firm represents numerous physicians who have been affected by this unprecedented action. We are in the process of conducting a comprehensive evaluation of their legal rights regarding the suspension of their board certifications and individualized analyses of potential efforts to mitigate any collateral effects.

If you have been adversely affected by this lawsuit and would like assistance in evaluating your legal rights, please contact a Wachler & Associates attorney at 248-544-0888.

St. Jude Medical Center will pay $3.7 million in a settlement with the Department of Justice regarding allegations that the organization paid illegal kickbacks to hospitals. In the settlement, St. Jude does not admit wrongdoing. The Department of Justice alleged that St. Jude paid kickbacks to hospitals in order to obtain opportunities in the heart device business. St. Jude argued that the allegations were based on “small, isolated product rebates “that had been paid over five years ago. The government argued, however, that these were kickbacks merely disguised as rebates. The case came to the attention of the Department of Justice through a whistleblower who had filed a False Claims Act qui tam action exposing the kickbacks. The whistleblower will receive $640,000 as part of the settlement.

If you would like any of your financial arrangements analyzed for risk of Stark or Anti-Kickback Statute violations, please contact a Wachler & Associates attorney at 248-544-0888.

The sale of the Detroit Medical Center (DMC) to Vanguard Health System, a hospital chain based in Nashville, has been delayed ten days. The DMC Board of Trustees and Vanguard Health Systems extended the letter of intent to allow each organization’s legal teams to complete the necessary work for the parties to reach an agreement.

The proposed deal involves Vanguard’s investment of $850 million over five years in 20 projects, including a new tower at DMC’s Children’s Hospital of Michigan, and the expansion of the emergency department at Sinai-Grace Hospital. In addition, Vanguard would pay DMC $417 million to retire its debt and fund $278 million in pension obligations.

For more information on health law issues, please visit www.wachler.com or contact a Wachler & Associates attorney at 248-544-0888.

Beginning July 1, 2010, Blue Cross Blue Shield of Michigan (BCBSM) will cease payment on CPT consultation codes for Medicare Plus Blue PFFS and Medicare Plus Blue PPO. This decision follows after the Centers for Medicare & Medicaid Services (CMS) discontinued reimbursement as of January 1, 2010 for consultation codes in CPT ranges *99241-*99245 and *99251-*99255.

BCBSM outlined three situations in which consultation codes will not be payable, beginning with dates of service on or after July 1, 2010:

The Department of Health and Human Services Secretary Kathleen Sebelius filed a motion to dismiss in U.S. District Court to dismiss the Virginia Attorney General’s challenge of the healthcare reform law. The suit is separate from the legal action filed in Florida that includes 20 states. The Virginia Attorney General, Ken Cuccinelli, argued that Virginia was in a position to challenge the healthcare reform measure because of a law adopted in Virginia that states that individuals cannot be forced to buy health insurance in Virginia. The motion to dismiss filed by the Obama administration on Monday argues that Virginia had no standing to sue and that the Congressional power to regulate commerce renders the law constitutional.

Although the Obama administration has remained clear on its federal arguments defending the healthcare reform law, this motion to dismiss is the first time that these arguments have been formally submitted to a court.

For more information on healthcare reform and its impact on providers, please visit www.wachler.com or contact a Wachler & Associates attorney at 248-544-0888.

The U.S. Department (DOJ) and the Health Alliance of Greater Cincinnati entered into an agreement to settle a False Claims Act lawsuit with the DOJ alleging that from 1997 to 2004 Christ Hospital, a former member of the Health Alliance, scheduled cardiologists at a diagnostic unit based on the amount of business they brought to the hospital. The DOJ alleged that the arrangement was a kickback scheme because the cardiologists could bill for their diagnostic services and obtain new patients for follow-up procedures. The case was initiated by a whistle-blower lawsuit that the DOJ joined in 2008.

In the settlement agreement, Health Alliance of Greater Cincinnati and Christ Hospital deny the allegations and do not admit liability. The organizations agreed to pay a total of $108 million in the agreement.

This case – and similar cases that have been brought against health care providers by the DOJ over the past several years – highlight the importance of ensuring compliance with federal laws including the Stark law and the Anti-Kickback Statute to protect against the possibility of costly False Claims Acts lawsuits.

Earlier this month, the U.S. District Court for the Western District of Michigan granted a defendant’s motion to dismiss a qui tam action against it. The court held that the relator failed to state a claim with the required particularity.

Robert Lauricia filed the qui tam action under the False Claims Act (FCA) against Stryker Corporation. Mr. Lauricia’s complaint alleged that Stryker was engaged in a kickback scheme with Dr. Hari K. Parvateneni. The scheme involved Dr. Parvateneni’s agreement to use Stryker’s medical devices for implantation into Medicare patients in exchange for Stryker’s agreements to fund the training of Parvateneni’s residents and research projects. Mr. Lauricia alleged that since Parvateneni and Stryker engaged in the illegal kickback scheme, any claims submitted for reimbursement from Medicare were violations of the FCA.

The defendants’ motion to dismiss was granted by the district court. The court expressed that the allegations failed to state a claim for relief as the relationship between the defendants was neutral on its face, with Mr. Lauricia failing to produce any specific conduct that would render it illegal. The court also noted that the claim failed to allege the time or place of the alleged misrepresentations, any injury resulting from the alleged fraud, or even a single particular fraudulent claim.