Mike Cassidy Named Again To America's Best Lawyers List

Mike Cassidy has been named again as one of  America's Best Lawyers in Healthcare , for the 2010 list.

Best Lawyers is the oldest and most respected peer-review publication in the legal profession. For a quarter century, we have helped lawyers and clients find legal counsel in unfamiliar jurisdictions or unfamiliar specialties.

Best Lawyers compiles lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. In the U.S., Best Lawyers publishes an annual referral guide, The Best Lawyers in America, which includes 39,766 attorneys in 80 specialties, covering all 50 states and the District of Columbia.

The current, 16th edition of The Best Lawyers in America (2010), is based on more than 2.8 million detailed evaluations of lawyers by other lawyers.

Federal Trade Commission Delays Red Flag Rules Enforcement Until November 1, 2009

On July 29, 2009, the Federal Trade Commission announced that it will again delay enforcement of the Red Flag Rules, this time until November 1, 2009. The Red Flag Rules apply to health care providers who allow patients to pay for health care services, for example through co-payments and deductibles, in installments. For further details, see the Federal Trade Commission's announcement delaying the enforcement date.

Red Flag Rules Compliance Required August 1, 2009

On August 1, 2009, health care providers will be subject to enforcement of the "Red Flag Rules" issued by the Federal Trade Commission under the Fair and Accurate Credit Transactions Act. The Red Flag Rules apply to health care providers who allow patients to pay for health care services, for example through co-payments and deductibles, in installments. It is important for all health care providers to have a general understanding of the "Red Flag Rules" and to develop an appropriate compliance program prior to the August 1, 2009 enforcement date. The attorneys at Tucker Arensberg, P.C. are offering a Red Flag Rules Compliance Package to assist health care providers in compliance with these rules by the rapidly approaching implementation date. The package includes a draft Red Flag Rules policy for your practice and a compliance implementation guide. The total cost for the Red Flag Rules Compliance Package is $145.00.

To learn more about our Red Flag Rules Compliance Package, contact attorney Paul Welk at 412.594.5536 or pwelk@tuckerlaw.com.

Nurse Immigration Visa Bill Proposed to Fight Shortage

HR 2536, The Emergency Nursing Supply Relief Act, See http://www.govtrack.us/congress/billtext.xpd?bill=h111-2536 has been introduced in the House by Congressman Robert Wexler.  Although there is a long process ahead this first step provides hope for much needed relief for the U.S. nursing shortage as it will make immigrant visas specifically available for nurses.  These visas are currently unavailable and have been backlogged for the past three years.  Foreign nurses are required to meet extensive credentialing requirements to work in the U.S.  See www.cgfns.org.  Nurses are limited entry under the H-1B temporary worker visas unless they are Nurse Practitioners or Advanced Practice Nurses as most states do not require a minimum of a Bachelor degree to perform the work of a registered nurse.  Therefore the availability of a green card for nurses would provide a viable option for U.S. health care employers to supplement their nursing needs with much needed foreign nurses.  The bill's text was released in May of 2009 and is similar to H.R. 5924, introduced last year.  The bill would allocate 20,000 additional green cards per year for three years for nurses and physical therapists.  Spouses and children will get green cards and will not be included in the 20,000 figure.  Employer petitioners will pay a $1500 fee in addition to regular green card fees.  The fee will support nurse training programs around the U.S.

Radiology Self-referral Bill May Be Folded Into Health Reform

A bill introduced into the U.S. House of Representatives in June that would close the in-office ancillary service exemption for MRI, CT and PET allowed under the Start anti-self-referral law may be added to a healthcare reform package currently under consideration in Congress.

Rep. Jackie Speier (D-CA) introduced HR 2962, or the Integrity in Medicare Advanced Diagnostic Imaging Act of 2009, as a standalone bill on June 19. Now, Rep. Anthony Weiner (D-NY) and Rep. Bruce Braley (D-IA), members of the House Energy and Commerce Committee, are planning to offer Speier's bill as an amendment to the healthcare reform package currently being debated in their committee, which is one of three House committees debating the legislation, according to the American College of Radiology (ACR) of Reston, VA.

In a July 20 letter to ACR membership, ACR chair Dr. James Thrall urged radiologists to register their support of the amendment with Congress.

"Please be aware that passage of this amendment will be extremely difficult," Thrall wrote. "There is no issue in medicine that is as divisive as ownership within a physician's office. We can expect the full force of organized medicine to fight [it]."

Even if the self-referral amendment passes, Speaker of the House Nancy Pelosi (D-CA) and House leadership could choose not to hold a floor vote on the bill if too many amendments have been added to it, Thrall said.

"They could instead schedule a floor vote on the healthcare bill from the Ways and Means Committee, whose Health Subcommittee Chairman, Congressman Pete Stark [D-CA], opposes amending the Stark law," Thrall wrote. "If that happens, the ability to offer a self-referral amendment to that bill on the House floor is doubtful."

In an action alert, also on July 20, the ACR encouraged its members to recommend that their congressional representative contact Reps. Weiner and Braley and offer support for the amendment. Reported by AuntMinnie.com, 07/21/09.

Obama Hails Advance of Health-Care Reform Bill in Senate

Reprinted from Physician News Briefs

By Ceci Connolly and Michael D. Shear

Washington Post Staff Writer
Wednesday, July 15, 2009; 2:42 PM

After a key Senate committee pushed forward with an overhaul of the nation's health care system, President Obama today sought to reassure Americans satisfied with their current health insurance that the plans passed by Congress in the last two days are a step toward more efficient care.

"Let me be clear: If you like your doctor or health care provider, you can keep them. If you like your health care plan, you can keep that too," he said in a Rose Garden event. "But here's what else reform will mean for you: you'll save money. If you lose your job, change your job, or start a new business, you'll still be able to find quality health insurance you can afford."

Criticism of the Democratic health reform efforts has increasingly centered on the threat to health services for people who already have insurance. That criticism has forced the White House and congressional leaders to revise their message to sell those who are satisfied with the health care they already receive.

Surrounded by nurses today, Obama insisted that no one should be satisfied with the current system.

"Health insurance premiums have risen three times faster than wages. Deductibles and out-of-pocket costs are skyrocketing. And every single day we wait to act, thousands of Americans lose their insurance, some turning to nurses in the emergency room as their only recourse," he said. "So make no mistake: The status quo on health care is not an option for the United States of America."

The president praised the Senate's passage this morning of its health reform bill, calling it the result of "unyielding passion and inspiration provided by Senator Edward M. Kennedy, and the bold leadership of Senator Chris Dodd."

He vowed to reject the "naysayers and cynics" who say the government can't finish health care reform.

"We're going to get this done. These nurses are on board. The American people are on board," he said. "It's up to us now."

The Senate's health committee approved legislation earlier today that, if enacted, would vastly expand health insurance coverage in America and tighten restrictions on the way the industry operates.

The 13-10, party-line vote gives Obama an important victory in what promises to be a lengthy and contentious drive to enact a comprehensive health-care overhaul this year.

The bill, named "Quality, Affordable Health Coverage for All Americans," would create a controversial new government-sponsored health program that would compete with the private sector. It requires that every American carry health insurance and provides generous discounts to people who cannot afford a plan. Millions more Americans would also be eligible for Medicaid, the joint federal-state health program for the poor.

In a statement issued before the Rose Garden even, Obama said the proposal would "bring down costs, expand coverage, and increase choice." The committee vote, he added, "should . . . provide the urgency for both the House and Senate to finish their critical work on health reform before the August recess."

Under the legislation, most businesses would be required to offer insurance to workers or pay a $750 annual fee per full-time employee. Companies with fewer than 25 employees would be exempt from the mandate, which faces fierce opposition by the Chamber of Commerce and National Federation of Independent Businesses.

Sen. Mike Enzi, (R-Wyo.), the highest-ranking Republican on the committee, delivered a bitter speech decrying the "partisan bill" as one that increases the deficit, "kills jobs and cuts wages."

More than anything, the vote this morning by the panel, formally named the Senate Health, Education, Labor and Pensions Committee, gives Democrats a bit of forward motion in a legislative effort that has sputtered in recent weeks.

"Health care reform is now one step closer to reality," said Senate Majority Leader Harry M. Reid (D-Nev.). He added, "This action is a positive step toward quality and affordable health care that Americans need and deserve."

The Senate Finance Committee, which has jurisdiction over the financing of health reform, has fallen behind its schedule as Chairman Max Baucus (D-Mont.) searches for bipartisan consensus on the politically difficult issue.

Three members of the panel scheduled a news conference for this afternoon to put pressure on the insurance industry to contribute up to $100 billion over the next decade toward the cost of expanded health coverage. House Democrats have announced a plan that would force the richest 2 million U.S. taxpayers to shoulder much of the cost of an expansion of the nation's health-care system, by imposing a surtax of as much as 5.4 percent on income above $350,000 a year.

Also today, the Democratic Party's Organizing for America released new television ads touting the urgent need for health reform. The 30-second spot, dubbed "It's Time," features average Americans who say they have been negatively affected by the current system.

Democratic Sen. Christopher J. Dodd (Conn.) is filling in as chairman of the health committee for the ailing Edward M. Kennedy (D-Mass.), a longtime proponent of health-care reform who has devoted decades to the cause of universal health coverage.

The absent senator, who is battling terminal brain cancer, issued an emotional statement to the committee from his sickbed, recalling that his two slain brothers announced their candidacies for the presidency in the Russell Caucus Room, where today's vote took place.

"As you vote today, know that I am with you in heart and mind and soul, and I wish very much that I could be with you in person," Kennedy said. "The American people are on the march once more, and they will not stop until quality, affordable health care is the birthright of every American. And we are with them every step of the way."

Dodd told his colleagues that Kennedy, a close friend, is "ecstatic about our efforts here."

Recently published by American Immigration Lawyers Association

Findings by the Council were that the broken US Immigration System risks serious consequences to U.S. national interests:

Specifically:

- Weaken US Economy

- Jeopardize Diplomacy

- Imperil National Security

Council on Foreign Relations Press Release:

http://www.aila.org/content/fileviewer.aspx?docid=29470&linkid=206416

Council on Foreign Relations Report on Immigration Policy:

http://www.aila.org/content/fileviewer.aspx?docid=29470&linkid=206410

August 2009 State Department Visa Bulletin

The August Visa Bulletin was just released. Currently Employment Based Category Three (Skilled Worker) remains unavailable and Employment Based Category Two (Advanced Degree Professional) for India is backlogged to October 1, 2003. For all other countries Advanced Degree Professional Immigrant visas are currently available. Please see August 2009 State Department Visa Bulletin

Piyush Seth
412.594.5640
pseth@tuckerlaw.com

Cap Count for H-1B and H-2B Workers for Fiscal Year 2010

As of July 10, 2009, approximately 44,900 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. As such there are more than 20,000 quota numbers available.

In addition, approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.

Piyush Seth
412.594.5640
pseth@tuckerlaw.com

 

CMS Issues Proposed Changes to Physician Supervision Requirements for Hospital Outpatient Services

In the proposed changes to the Hospital Outpatient Prospective Payment System, CMS is proposing to change the physician supervision requirements applicable to hospital outpatient services described in the 2009 Hospital Outpatient Prospective Payment System (OPPS) final rule. In the proposed rulemaking release, issued July 1, 2009, CMS indicates that physician supervision requirements requiring "direct supervision" will be met so long as the supervising physician is physically present on the hospital campus and immediately available to offer assistance during the service. This is similar to the "incident to" direct supervision requirement, but the question will continue to be the definition of "Hospital Campus" when combined with "immediately available." CMS also indicates that non-physician practitioners can satisfy supervision requirements consistent with their state-defined scope of practice.

CMS Issues Proposed Changes to the Ambulatory Surgical Center Payment System and CY 2010 Payment Rates

This proposed rule would update the revised Medicare Ambulatory Surgical Center (ASC) Payment System to implement applicable statutory requirements and changes arising from CMS's continued experience with administrating that system. The proposed rule sets forth applicable relative payment weights and amounts for services furnished in ASCs, the specific HCPCS codes to which these proposed changes would apply, and other pertinent rates setting information for the CY 2010 ASC system. 

CMS Releases Proposed 2010 Physician Fee Schedule and Projects 21.5% Decrease

The Centers for Medicare and Medicaid services released its proposed Medicare Physician Fee Schedule for 2010. The press release and the entire 1,200 fee schedule are attached. CMS is projecting a 21.5% physician fee schedule decrease based upon the application of the sustainable growth rate (SGR) formula. Of course, Congress has intervened in each of the last five or six years to override the automatic fee schedule revision based upon SGR, which has been uniformly negative for the last six years. No one expects a 21.5% decrease! 

CMS highlights several key areas in the press release:

1.         Elimination of consultation services;

2.         CMS proposes to eliminate consult payments to specialists and replace them with the application E&M Code to reduce payments.

3.         Initial Preventative Physician Exam (IPPE):

            CMS proposes to increase the payment for the "Welcome to Medicare" visit to be more in line with payment rates for higher complexity services.

4.         Chronic disease:

            The new fee schedule proposes to implement new Medicare benefit categories for cardiac and pulmonary rehabilitation services, and chronic kidney disease education.

5.         Imaging accredation in physician office: CMS has resuscitated the proposal that imaging services and physician offices must be subject to the same quality or standards or accredation applicable to independent diagnostic testing facilities. The accreditation requirement would be effective as of January 1, 2012 and would apply to mobile units, physician offices, and independent diagnostic testing facilities, but would only apply to the technical component aspect and not to the physician who interprets them. The general accounting office (GAO) has stated "Spending on advanced imaging services, such as computed tomography (CT), magnetic residents imaging (MRI) and positron emissions tomography (PET) is growing almost twice as fast as the spending on other types of imaging services, and is a significant contributor to the rapid growth in health care pending in recent years, but there is little administrative oversight to ensure the quality of care." I wonder how much CT, MRI and PET is actually being provided in physician offices.

Georgia Supreme Court Rules Peer Review Information Not Always Confidential

In Hospital Authority of Valdosta and Lowndes County v. Meeks, the Georgia Supreme Court ruled that information contained in a physician's peer review file was not necessarily protected by the Georgia Peer Review Confidentiality Statute.

Although the holding is enticing from the physician perspective, the limitations contained in the opinion render the precedent potentially meaningless.

The case arose as a negligent credentialing action, with the Plaintiff seeking peer review documents claimed by the hospital to be absolutely privileged under the applicable Georgia Peer Review Confidentiality Statute, which is cited in the opinion. In the lower appellate court, the court held that, although the statutes protected all proceedings and information of a review organization, the statute did not necessarily protect information which, although contained in the peer review records, did not involve a peer review committee's evaluation of the subject physician's performance. 

This ruling was affirmed on appeal by the Georgia Supreme Court. From the viewpoint of precedent regarding discovery of confidential information, the opinion does stand for the preposition that material in the peer review file can be accessed by third parties, and presumably by the subject physicians themselves, so long as the information does not involve the evaluation of actual medical services provided by the subject physician. However, from a practical perspective, it is hard to imagine that any meaningful information would not fall within this protected category.

Significant New False Claims Act Changes

President Obama signed the Fraud Enforcement and Recovery Act of 2009 on May 28, 2009, which is the effective date of the Act. 

I am attaching a compared version identifying all the changes, but I would like to direct your attention to what I believe is the most significant change impacting typical healthcare providers.

Retentions of Overpayments

This has always been a troublesome issue, and it has been unclear whether the False Claim Act, and its significant civil money penalties, would be applicable to overpayments not arising out of obviously false claims. FERA resolves this doubt by defining a false claim as "knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the government." This situation is often referred to as a "reverse false claim," because no false claim has been filed, but obvious overpayments exist. The language still has subjective elements, i.e. "knowingly conceals" or "knowingly and improperly avoids or decreases," and that raises questions regarding obligations to audit, extrapolate, refund, etc. 

We can say at this point that healthcare providers have been put on notice that the Government intends reverse false claims or retention of overpayments to be included within the scope of the False Claims Act. 

The civil penalties associated with the false claims remain at $5,000 to $10,000 per claim, plus treble damages for the unpaid amounts.