Med Law Blog : Pennsylvania Health Care Lawyers & Attorneys : Tucker Arensberg Law Firm : Employee Benefits, HIPAA & HIT in Pittsburgh, PA

It was the night before Christmas and all through the west, not a physician was conspiring, not even the next. . .  On December 24, 2008, the FTC announced settlement of price fixing cases against AllCare IPA, a 500 physician multi-specialty IPA organized as Independent Practice Associates Medical Group, Inc. in Modesto, California, and Boulder Valley Independent Practice Association (BVIPA), a 365 physician multi-specialty IPA organized in Boulder County, Colorado. In the press release, David P. Wales, the Acting Director of the Bureau of Competition, stated: 

"When health care providers decide to pursue personal gain through unlawful price-fixing, consumers often are forced to either pay higher prices or forgo vital treatments they can no longer afford. The actions announced today against two separate physician groups should send a strong message that we will not let this conduct stand."

According to the FTC statement, the crux of the case was that the physicians:

(i)         did not share risk;

(ii)        did not operate integrated clinical programs designed to improve quality of care; and

(iii)       did not integrate services.

Copies of the press release and the consent agreements can be obtained at the following link: http://www.ftc.gov/opa/2008/12/allcare.shtm

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Pennsylvania’s Department of Public Welfare, which administers the Medical Assistance or Medicaid Program for the Commonwealth, experienced a huge set back in its efforts to curtail the use of annuities in Medical Assistance Long Term Care (MA-LTC) Planning with the recent Weatherbee v. Richman opinion dated January 22, 2009. 

The Department contested the conversation of Mr. Weatherbee’s “excess resources”, those above the allowable limit, to an immediate, non-assignable annuity which provided an income stream to his non-institutionalized or community souse. The Department contended that this annuity could be sold on the secondary market and thus converted back into an available resource to Mr. Weatherbee, which resource would need to be spent down before MA-LTC benefits could be granted. The Department relied upon anti-assignment provisions in Pennsylvania law found at 62 P.S. Section 441.6. 

The United States District Court for the Western District of Pennsylvania rejected the Department’s argument in ruling on its Motion to Dismiss Mr. Weatherbee’s action for declaratory and injunctive relief. The Court held that the anti-assignment provision in Section 441.6 is preempted by Federal MA-LTC law. 

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Any Upside to Downtrodden Markets? Estate Planning has Never Looked Better

As recently noted in the Wall Street Journal (see the following link): http://online.wsj.com/article/SB123249848140700515.html?mod=rss_Tax_Report), a combination of low interest rates and depressed asset values have caused the recent turn of events in the US economy to be one of the best times in history to transfer wealth to successive generations in a tax efficient manner. Through a variety of estate planning structures that take advantage of the low interest rate environment, including grantor retained annuity trusts ("GRATs"), private annuities, and self canceling installment notes ("SCINs"), there are many ways in which to take advantage of the low interest rates and depressed asset values in planning your estate. 

Please contact Jamie D. Aul in the Estates and Trusts department at (412) 594-3923 or jaul@tuckerlaw.com with inquiries. 

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In Cole vs. St. James Healthcare, the Montana Supreme Court affirmed the entry of a preliminary injunction against St. James Healthcare. The facts, briefly stated, were that the hospital had undertaken an investigation in a manner that was not authorized by the medical staff bylaws and changed Dr. Cole's Medical Staff status without following the due process procedures, ultimately denying Dr. Cole's application for reappointment and offering a medical staff hearing at that point. Dr. Cole obtained an injunction at the trial court level by which the court ordered the following:

1.         The defendant is enjoined from refusing to consider Dr. Jesse A. Cole to have full lack of privileges at St. James Healthcare, and is ordered to reinstate Dr. Cole's privileges to the status of full active staff privileges;

2.         The defendant is enjoined from adopting the recommendation of the Matovich investigation not to renew Dr. Cole's privileges at St. James Healthcare, and such investigation and recommendation did not involve peer review as contemplated by the hospital bylaws;

3.         The defendant is enjoined from making any adverse report to the National Practitioner Data Bank regarding the hospital's reduction of Dr. Cole's privileges; and

4.         The defendant is enjoined from taking any further adverse action against Dr. Cole's full active staff privileges unless and until the hospital utilizes a peer review investigation conducted by its medical staff as required by the hospital's bylaws. 

In this case, there was no issue regarding contractual status of the bylaws; both parties accepted the proposition that the bylaws constitute a contract. 

The case is also important because the opinion recognizes that an adverse report to the National Practitioners Data Bank could cause irreparable injury, thereby forming the basis for issuing injunctive relief.

A copy of the opinion is available at the following link.

http://op.bna.com/hl.nsf/id/mapi-7mwk84/$File/cole.pdf

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Medicare has announced the January 2009 ASC payment updates. It covers new surgical procedures, new and updated codes for drugs and biologicals, and additional services. The link is attached. 

http://www.cms.hhs.gov/MLNMattersArticles/downloads/MM6323.pdf

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You might have a domain name or a pending or registered trademark with the US Patent and Trademark Office. If so, you may be a potential recipient of unsolicited e-mails from alleged Chinese domain name registrar and dispute resolution providers. 

Typically, the e-mail states that another company is attempting to register a domain name or an Internet keyword which is identical or substantially similar to the client's trademark. Those who respond to such solicitations receive a communication from the registrar with very exorbitant prices for domain name registration.
 

1.         Why are these e-mails considered "scams"?

• As with all domain name registrars, anyone may secure a domain name as soon as it is available. See <http://www.cnnic.net.cn/html/Dir/2007/06/04/4628.htm> (last accessed January 15, 2009).

• Dispute resolution occurs after a domain name has been registered, not before. 

• Domain names are relatively inexpensive, including Chinese domain names (e.g., .cn, .com.cn, etc.).

• There are currently only two accredited Chinese domain name dispute resolution providers, China International Economic and Trade Arbitration Center and Hong Kong International Arbitration Center.

2.   What should I do if I receive a suspicious e-mail from an alleged domain name registrar and dispute resolution provider?

·         If the e-mail states that a company wants to register a domain name that is identical or similar to your trademark, then ignore it -- it is spam. As stated above, domain name disputes occur after registration, but not before. Domain names are secured on a first come, first served basis.

·         Additional steps you can take:

o        Check to see if the Chinese domain name firm is accredited by the Chinese Internet Network Information Center ("CNNIC"). 

§         A listing of accredited CNNIC domain name registrars and dispute resolution providers is available at <http://www.cnnic.net.cn/html/Dir/2006/02/14/4008.htm> (last accessed January 15, 2009).

o        Educate yourself about the Chinese domain name registration and dispute resolution process. See <http://www.cnnic.net.cn/html/Dir/2005/10/11/3218.htm >, <http://www.cnnic.net.cn/html/Dir/2005/03/24/2861.htm> (last accessed January 15, 2009).

o        Search the Internet to see if others have received similar e-mails and also search to make sure that your trademark is actually not being misused.

3. Should I register a Chinese domain name?

·         If your company has a presence in China, registration of a Chinese domain name is recommended.

o        However, a trademark search is recommended to help ensure that the domain name(s) which your company wants to apply for does not infringe or otherwise conflict with an existing trademark.

·         The domain name registrar should be accredited by CNNIC.

Conclusion

E-mails which state that someone is trying to register a domain name that is similar to your trademark should be ignored as spam. Domain names may be registered as soon as they become available and there is no "opposition" process. Additionally, the only accredited domain name dispute resolution providers in China are the China International Economic and Trade Arbitration Center and the Hong Kong International Arbitration Center. 
 

If you have any questions, concerns or comments, please contact Ralph F. Manning, Esquire at 412.594.5540 or rmanning@tuckerlaw.com or Lee Kim, Esquire at 412.594.3915 or lkim@tuckerlaw.com of the Tucker Arensberg, P.C. Intellectual Property and Technology Law Group.

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The Department of Labor has issued new amendments to the Family and Medical Leave Act that are effective January 16, 2009. We will shortly be sending out an explanation of the new regulations and how they may effect you. 

However, there is an immediate effect on employers, as the FMLA poster that you are currently displaying with your other employment posters is no longer accurate. To comply with the posting requirements, you can download the following document from the DOL website, which can then be added to your existing FMLA poster.

http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

If you have any questions, please contact Scott Leah at (412) 594-5551 or sleah@tuckerlaw.com.

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As required by Section 911 of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA), CMS is replacing its current claims payment contractors, previously known as Fiscal Intermediaries or Carriers, with new contract entities called Medicare Administrative Contractors (MACs). 

The responsibility for paying Medicare Part A and Part B claims is divided into 15 jurisdictions, known as A/B MAC Jurisdictions. Highmark Medicare Services, Inc. was awarded the contract for Jurisdiction 12 in October 2007. Jurisdiction 12 encompasses Delaware, District of Columbia, Maryland, New Jersey and Pennsylvania. In January 2009, Highmark was awarded the contract for Jurisdiction 15, which encompasses Ohio and Kentucky, with the intent of assuming full claims responsibility by March 2010.

A complete explanation of A/B MAC Jurisdictions and the contracting process can be accessed at the following link.

http://www.cms.hhs.gov/MedicareContractingReform/

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A New Jersey Court has awarded $400,000 to a deaf patient who claimed her doctor discriminated against her by refusing to provide an interpreter. Irma Gerena sued Robert Fogari, a Jersey City rheumatologist, under the Federal Americans With Disabilities Act and Rehabilitation Act, claiming violations for refusing to provide to interpreter. This is not a new issue. The US Department of Health and Human Services has issued "Guidance to Federal Financial Assistance Recipients Regarding Title Vi Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons." A copy of that guidance, issued in January 2004, is available at the link below. 

Since almost all medical practices have received payment from Medicare and Medicaid, they will be included within the Act. You should also note that this is not a malpractice claim and would therefore not be covered by your malpractice insurance. 

http://www.hhs.gov/ocr/lep/revisedlep.html

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Thanks to Claire Miley of Bass, Berry & Sims in Nashville, Tennessee for posting an alert regarding the final DMEPOS Surety Bond requirements. Below is the text of the American Health Lawyers Association e-mail alert.

CMS Issues Final Rule Requiring Surety Bonds for DMEPOS

On December 29, 2008, the Centers for Medicare & Medicaid Services (CMS) announced regulations requiring suppliers of certain durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) to post a surety bond as a condition of new or continued Medicare enrollment. Specifically, the final regulations require:

• For DMEPOS Suppliers Seeking Enrollment or with a Change in Ownership. Beginning May 4, 2009, DMEPOS suppliers seeking to enroll or to change the ownership of a supplier of DMEPOS must submit to the National Supplier Clearinghouse (NSC) a $50,000 surety bond for each assigned NPI for which the DMEPOS supplier is seeking to obtain Medicare billing privileges.

• For Existing DMEPOS Suppliers. Beginning October 2, 2009, each Medicare-enrolled DMPOS supplier must submit to the NSC a $50,000 surety bond for each assigned NPI to which Medicare has granted billing privileges.

• Enrolling New Practice Locations. A DMEPOS supplier enrolling a new practice location must submit to the NSC a new surety bond or an amendment or rider to the existing bond, showing the new practice location is covered by an additional base surety bond of $50,000.

• Elevated Surety Bond Amounts. Suppliers who have certain adverse legal actions imposed against them in the past may be required to post a higher bond amount. The final regulations permit the NSC to require DMEPOS suppliers to obtain a base surety bond of $50,000 and an elevated surety bond of $50,000 for each occurrence of an adverse legal action within ten years preceding enrollment, revalidation, or reenrollment in the Medicare program.

The final regulations are effective March 3, 2009. Some companies or organizations that supply DMEPOS are exempt from the surety bond requirements, including certain physician and non-physician practitioners, physical and occupational therapists, state-licensed orthotics and prosthetic personnel, and government-owned suppliers.

http://edocket.access.gpo.gov/2009/pdf/E8-30802.pdf

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The Congressional Budget Office has prepared two remarkably thorough analyses regarding the fundamental issues confronting healthcare policy and the projected costs of more than 100 different reform proposals. Great summer vacation reading -- if you start now, you might finish by summer vacation. Check the links below:

http://www.cbo.gov/doc.cfm?index=9925

http://www.cbo.gov/ftpdocs/99xx/doc9924/12-18-KeyIssues.pdf

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