Sunday, March 18, 2007

100 Great Reasons To Read Blawg Review #100

Don't miss the special 100 anniversary edition of Blawg Review hosted by it's anonymous editor. This week's edition features posts from the past 100 hosts of Blawg Review. Blawg Review is a featured "blog carnival" this week at

A quick thanks to the Editor for allowing me the opportunity to host Blawg Review #44 and Blawg Review #97.

Thursday, March 15, 2007

WV Passes (Almost) E-Prescribing Bill

The West Virginia Legislature passed (almost) SB 69 (HB 2289) allowing West Virginia to join the majority of states that allow e-prescribing. It appears that technical errors that occurred as a result of the House and Senate mistakenly passing separate versions of the bill will be cleaned up in a special session on the state budget.

For more information check out the State Journal article, E-Prescribing Soon to Be Reality in W.Va. or iHealthBeat article, West Virginia Likely to Pass E-Prescribing Bill.

Wednesday, March 14, 2007

Charleston Area Alliance: The Value of Blogging In Business

The Charleston Area Alliance will be holding its CEO Roundtable Luncheon on April 4 where the topic for discussion will be "The Value of Blogging In Business."

I will be participating on a panel of Charleston area business bloggers along with Matt Ballard, CEO of the Charleston Area Alliance who blogs at the CAA Blog and Skip Lineburg, Chief Creative Officer of Maple Creative who blogs at Marketing Genius from Maple Creative.

I'm looking forward to sharing my ideas on business blogging and providing some practical tips to help local CEOs, professionals and other small business owners leverage the use of blogs in today's business market.

For more information about the event and how to register go to this link. The event is limited to 30 participants so don't wait to register.

The Ying and Yang of Health Privacy

Christina's Considerations posts a quote by Dr. William Yasnoff from a recent New York Times article, Warnings Over Privacy of U.S. Health Network. The quote caught my eye because it highlights what I'll refer to as the ying and yang involved in the conversion to a more comprehensive interoperable health information system and how you and I as patients may react.

The quote reads:
"Anything you do to make information more accessible for good, laudable purposes will simultaneously make it more accessible for evil nefarious purposes. People intuitively understand that, and they are worried."
Those of us working on health privacy and e-health issues should regularly consider and reassess this principal as we move forward to transform the way health information is collected, stored, used, disclosed and aggregated. Over the years to come health lawyers will play an increasingly important role in the process of addressing legal issues that arise from the concept highlighted by the quote.

Tuesday, March 13, 2007

One Space or Two?

For years I've thought I was right on this one -- but finally -- proof. Should you use one space or two spaces after a sentence? Adams Drafting has the answer in this post, "One Space or Two?".

I can't tell you how many legal secretaries I've tried to convince to stop hitting the space bar twice. I use full margin justification for my legal contracts and documents and adding two spaces after a sentence can leave too much white space between sentences. I remember taking typing in high school and being taught the two space bar rule after each sentence -- but that was on a manual typewriter.

For this and other great posts on contract drafting be sure to check out Adams Drafting, a great lawyer niche blog on contract drafting. I've been a regular RSS reader for a number of months.

Thanks to Alaina Crislip for pointing me to this post.

Tuesday, March 06, 2007

The False Claims Act: Recent Changes Affecting Health Care Entities

Amy Rothman, an attorney in the health care practice group at our firm recently authored an article on the False Claims Act and recent changes brought on by the Deficit Deduction Act of 2005 and West Virginia's fraud and abuse statute that will appear in the Spring 2007 edition of the Defense Trial Counsel of West Virginia Newsletter. Congratulations to Amy on a great article.

The article is titled, The False Claims Act: Recent Changes Affecting Health Care Entities

The False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq., was enacted in 1863 during the presidency of Abraham Lincoln. The FCA, also known as the Lincoln Law, was established to prevent pricing fraud by persons and companies selling supplies to the Union Army during the Civil War. The original FCA contained a qui tam provision that allowed citizens, on behalf of the United States, to sue companies or individuals for false or fraudulent billings submitted to the government. The current version of the FCA still allows for qui tam actions for false or fraudulent claims. While the FCA applies to any false claim submitted to the United States government, the FCA has been actively used as a tool for combating Medicare and Medicaid billing fraud. The Centers for Medicare and Medicaid Services (“CMS”) reports that Medicare and Medicaid spending was over $500 billion for the 2006 fiscal year. In CMS’ 2006 Management’s Discussion and Analysis, administrators at CMS recognized that the best way to cut Medicare and Medicaid spending and maintain the integrity of the programs was to reduce Medicare and Medicaid fraud and abuse. For example, the Department of Health and Human Services reports that it collected almost $2.3 billion in 2006 from false claims suits. By implementing and actively enforcing anti-fraud compliance laws, the government can recover more money and, thus, curb the amount of Medicare and Medicaid spending.

In order to further combat health care fraud and abuse, Congress enacted the Deficit Reduction Act of 2005 (“DRA”), P.L. 109-171. The DRA contains provisions to slow mandatory spending in Medicare and Medicaid. Furthermore, the DRA includes a provision, § 6032, that requires health care entities to address fraud and false claims within the Medicaid system. Section 6032, entitled “Employee Education About False Claims Recovery,” requires entities receiving or making payments of more than $5 million annually in Medicaid reimbursement to establish policies and disseminate information to employees about the False Claims Act and anti-fraud compliance. Notably, the DRA does not contain a similar provision requiring entities to address fraud within the Medicare system.

On December 13, 2006, CMS issued a letter to provide guidance to state Medicaid programs and health care entities on compliance with § 6032. According to CMS, § 6032 applies to any health care entity making or receiving $5 million in Medicare payments, regardless of whether the entity is for-profit or not-for-profit, whether the payments are made at a single location or multiple locations, or whether the payments are made under multiple tax identification numbers. Entities subject to § 6032 must establish policies for all employees, including management, contractors, and agents, regarding false claims and fraud and abuse. Those policies must include detailed information about the federal FCA and any applicable state FCA, as well as the entity’s policies for detecting fraud, waste, and abuse. The entity must also provide information to employees regarding the right of an employee to be protected as a whistleblower in a qui tam action.

According to § 6032, the entity must include this information in its employee handbook. CMS indicates that an entity that does not have an employee handbook is under no obligation to create one. However, CMS does indicate that it is the entity’s responsibility to disseminate the written policies.

All health care entities subject to § 6032 were required to comply with the provisions of § 6032 by January 1, 2007. The penalty for non-compliance is high—health care providers can be excluded from participation in the Medicaid program. In addition, failure to establish and distribute false claims policies could result in false claims exposure. Furthermore, if a false claim action is brought against an entity and the entity is found liable, the entity may have to pay treble damages to the government.

Currently, West Virginia does not have a false claims act governing all governmental transactions. However, West Virginia does have a statute that regulates fraud and abuse in the Medicaid program, West Virginia Code § 9-7-1 et seq. Section 9-7-1 indicates that the purpose of West Virginia’s fraud and abuse statute is to combat the substantial sums of money that have been lost by the state and federal government in operation of the state’s Medicaid program.

West Virginia’s fraud and abuse statute states that “[a] person shall not make or present or cause to be made or presented to the [Department of Health and Human Resources] a claim under the medical programs of the department of welfare knowing the claim to be false, fraudulent or fictitious.” W. Va. Code § 9-7-5(b) (1981). The statute provides for both civil and criminal penalties. In addition, any person or entity that violates the statute is liable to the Department of Health and Human Resources for fines equal to three times the amount of any payments received from which that person or entity was not entitled. W. Va. Code § 9-7-6 (1981).

If history is any indication, West Virginia also may enact false claims provisions that mimic the federal law. The DRA provides an incentive to states that establish false claims statutes. Under the incentive, states with false claims statutes will receive an additional 10% of any funds recovered under that statute. Because of this incentive, it is likely that West Virginia will update its fraud and abuse statute.

In the future, it is likely that all entities, whether receiving more or less than $5 million in Medicaid payments, will be required to comply with § 6032’s false claims and anti-fraud policies. Additionally, if § 6032 helps curtail Medicaid spending, fraud, and abuse, it is plausible that Congress will enact similar policies for the Medicare program. Due to the DRA’s employee education requirements and state incentive to create false claims acts, the future holds a strong likelihood of increased false claims investigation and litigation.

Amy L. Rothman is a health care litigation attorney at Flaherty, Sensabaugh & Bonasso, PLLC. For questions, she can be reached at (304) 345-0200.

UPDATE: On March 20, 2007, CMS issued DRA 6032 - Employer Education About False Claims Recovery - Frequently Asked Questions an additional guidance document on interpretation of the new regulations. Additional guidance materials can be found under the State Medicaid Directors Letters section of the CMS website under Final Guidance Regarding Employee Education for False Claims Recovery.

Friday, March 02, 2007

Bethany College: The Value of Small Liberal Arts Colleges

Today's Charleston Gazette contained a letter to the editor, Not all is negative in West Virginia, that made me proud of my alma mater Bethany College. As the Bethany website says, Bethany is a place that gives you "permission to dream."

The letter by the grandparent of a current graduating student understands the often negative stigma that West Virginia receives and highlights the important role that places like Bethany play in the future of our state. Interestingly, I was reading this NYT article, A Fighter for Colleges That Have Everything But Status, yesterday and would put Bethany in this same category.

The letter prompted me to think about the impact the professors I had while attending Bethany from 1984-1988 had on me in developing learning skills that I apply everyday as a health care lawyer. I want to thank and recognize professors like, Trevor Pierce, Albert Ossman, Larry Grimes, John Taylor, Tony Mitch, Bob Myers, John Hull, Bob Funk, Richard Kenney, Helen Louise McGuffie and others.

These professors changed my life. In fact I wouldn't be writing this blog if I hadn't taken the freshman seminar class, Computers and Society, from Dr. Pierce who introduced me to computers or Dr. Grimes who allowed me to explore how Mac computers, hypertext and computers labs could impact (and improve) writing as a part of my senior project in the English Department.

In 1988 I struggled (probably with Dr. Grimes) trying to understand what hypertext was. It was such a foreign concept. I remember getting books through inter-library loan to try to understand the concept and how it might apply in writing. At that time I didn't imagine that it would become the basic element of today's Live Web. Writing this post has prompted me that I need to search out and find my senior project paper to see what I actually wrote during the spring of 1988 on how hypertext was going to change the way we write and teach English.

For other examples of Bethany grads living out their dreams that probably started at Bethany, check out Greg Jordan, CEO and Dave Egan, Chief Marketing Officer of Reed Smith. You can bet Alexander Campbell, founder of Bethany College in 1840, was living out his dream when he built Old Main in the hills of West Virginia in the 1800s.

I could name more -- but instead I thought I would leave it up to those of you who might read this post to leave your thoughts in the comments.

[UPDATE: I shared a copy of this post with Sven de Jong, Bethany's VP of Adminssion and Advancement (and also a grad) and he pointed me to a post yesterday by Nathan Koppel on the WSJ Law Blog titled "Almost Heaven, West Virginia." The post declares Wheeling WV as the law-firm capital of the world and highlights the impact that current West Virginians are having on the world legal community.]

Here is the letter to the editor:

Not all is negative in West Virginia

I sometimes find it depressing that so many people in our state take at total face value negative results of research and misleading statistics that are quoted in newspapers and elsewhere. Maybe one should check their sources before automatically assuming that the information is totally accurate. I refuse to allow this sort of negative publicity to deter me from giving accolades to deserving individuals who dedicate their lives to teaching and institutions that help prepare our youth so that they have the necessary skills to succeed.

My granddaughter will graduate from Bethany College in May with a degree in chemistry and biology. She has been accepted at all of the medical schools to which she applied. Although she is a bright, self-motivated student, she did not accomplish this feat alone. She was guided with the nurturing support of many professors at Bethany, especially the mentoring of her biology professor, John Burns. I publicly offer my thanks and praise to him and to others at this fine institution who have helped her so much.

I understand very well that all is not perfect in West Virginia, but I hope that people will stop perpetuating the myth that we do not offer our youth the skills they need to succeed in life.

Barbara Hutchison-Smith
Cross Lanes