Norman Tabler, Jr.

Norman Tabler, Jr.

Faegre Baker Daniels

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Latest Publications


There Is Such a Thing as Being Too Careful

According to The New York Times, Medicare may be punishing hospitals—and academic medical centers (AMCs) in particular—for being too careful. That’s how Northwestern Memorial Hospital’s chief medical officer sees the...more

4/26/2016 - Health Care Providers Hospitals Medicare

Not Everyone Wants to Be on TV

It turns out that not everyone wants to be on television. New York-Presbyterian found that out the hard way. Back in 2011 the hospital allowed a television camera crew inside treatment areas to record footage for the...more

4/25/2016 - HIPAA Hospitals OCR Patient Privacy Rights PHI

Supremes Hear Argument on Implied Certification Theory

On April 19 the U.S. Supreme Court heard oral argument in Universal Health Services v. U.S. ex rel. Escobar. That’s the case in which the First Circuit upheld a whistleblower suit brought against a mental health clinic that...more

4/22/2016 - False Claims Act (FCA) False Implied Certification Theory Reimbursements SCOTUS Universal Health Services Inc v United States ex rel Escobar Unlicensed Medical Providers

New Guidance on Exclusion

For the first time in nearly 20 years the Office of Inspector General (OIG) of the Department of Health & Human Services has issued new guidance on the exercise of its authority to exclude health care providers from...more

4/20/2016 - Health Care Providers HHS Medicaid Medicare New Guidance OIG Yates Memorandum

Aetna Wins $37.5 Million for Overbilling Scheme

It’s easy to fall into the habit of regarding self-referrals and kickbacks as strictly a matter of federal law, governed only by the federal Stark Law and Anti-Kickback Statute. But an April 13 verdict in California provides...more

4/19/2016 - Anti-Kickback Statute Fraud Health Care Providers Stark Law

Texas-Size Sentences for Texas-Size Medicare Fraud

They do things big in Texas. The latest example is the punishments being handed out for a Medicare fraud scheme at Riverside General Hospital in Houston. Let’s start with the fraud scheme. It was Texas-size, too,...more

4/14/2016 - False Claims Act (FCA) Health Care Providers Healthcare Fraud Medicare

OK to Exaggerate How Long Patients Need Device

Today’s riddle: Why would a federal court approve a medical device manufacturer’s practice of persuading physicians to exaggerate the period of time Medicare patients need their devices? The answer is so simple that you’ll be...more

4/13/2016 - False Claims Act (FCA) Medical Devices Medicare Qui Tam Whistleblowers

News Flash: It’s Not Illegal to Tie Sutures!

You have to hand it to Kansas federal judge Daniel Crabtree. He played it completely straight in his April 7 decision rejecting the claim by Suture Express that two national medical supply distributors were guilty of...more

4/12/2016 - Competition Medical Supplies Restraint of Trade

Court Rejects End-Run of Medicare Appeals Rules

The Indiana Health Department sent a team to the Nightingale home health care and hospice group, in response to complaints. When CMS received the team’s report, it notified Nightingale that its Medicare certification was...more

4/8/2016 - CMS First Amendment HHS Medicare Motion to Dismiss Race Discrimination

What’s In a Name? Not Much, Says Colo. Federal Court

On March 31 a federal court in Colorado threw out a suit by 80 chiropractors against several national health insurers. The chiropractors alleged that the insurers violated Colorado law by paying them less than physicians and...more

4/7/2016 - Health Care Providers Health Insurance Reimbursements

When Are Punitive Damages Too Punitive?

The defendants aren’t in the health care business, but their April 1 victory in the Tenth Circuit has implications for defendants in all lines of business. That’s why the U.S. Chamber of Commerce weighed in with an amicus...more

4/6/2016 - Amicus Briefs Carbon Monixide Exposure Compensatory Damages Due Process Fourteenth Amendment Negligence Punitive Damages

Difference of Medical Opinions Doesn’t Prove One Was False

A federal court in Alabama dealt a blow to the theory that in matters of medical judgment, a false claim action can rest on expert opinion evidence alone. A patient is eligible for hospice if the prognosis is life...more

4/5/2016 - Evidence Expert Testimony Healthcare Hospice Summary Judgment

N.Y. High Court Denies Facility Fees for Office Surgery

New York State surgeons who operate in their offices took a hit on March 31, when that state’s highest court upheld a ruling that no-fault insurance companies are not required to pay a facility fee—only the professional fee....more

4/4/2016 - Ambulatory Surgery Centers Declaratory Judgments GEICO Motion for Summary Judgment No-Fault Insurance Surgery

U.S. Sides with Defendant Against Whistleblower—Sort of

Today’s riddle: why would the government take the defendant’s side against the whistleblower in a False Claims Act qui tam case? Why would the government challenge the whistleblower’s claim that two defendants violated the...more

4/1/2016 - False Claims Act (FCA) Qui Tam Settlement Stark Law Whistleblowers

Pause in Feds v. W.Va. Hospital Merger Battle

On March 24 the Federal Trade Commission issued an order temporarily putting on hold its hearing on the Cabell Huntington Hospital’s proposed acquisition of St. Mary’s Medical Center and Pallottine Health Services....more

3/31/2016 - Acquisitions Attorney Generals FTC Hospital Mergers Mergers

Federal Rx for Opioid Epidemic: Tighten Rules on Prescribers

The federal government has made no secret of its concern over what is invariably described as an “opioid epidemic” sweeping the country. Nor is it a secret that the government sees prescribing physicians—especially primary...more

3/30/2016 - CDC FDA Health Care Providers Prescription Drugs

Retaliation Claim Survives Though False Claim Act Claim Is False

Roxanne Perkins was employed as a clinical supervisor of prior authorizations therapy at Wellcare Health Plans. When she returned from a leave of absence, she learned that Wellcare had instituted a new practice of approving...more

3/29/2016 - False Claims Act (FCA) FRCP 9(b) Qui Tam Retaliation State Contracts Whistleblowers Wrongful Termination

Posting Chargemasters On-Line: Less than Meets the Eye

Michigan is just the latest state to consider legislation requiring hospitals to post their chargemasters on-line. Mich. Sen. Bill 147. These proposals have been popping up since 2013, when Time magazine devoted a full issue...more

3/25/2016 - Hospitals Pricing Proposed Legislation Technology

It’s an Election Year, So It’s Time for a Tort Reform Bill & Snappy Acronym

If it’s an election year, it must be time for someone in Congress to propose a tort reform bill and to come up with a snappy acronym—the more tortured, the better. And Rep. Trent Franks (R-Ariz.) has done just that, with...more

3/23/2016 - Damage Caps Healthcare Costs Malpractice Insurance Proposed Legislation Tort Reform

Bleak House on the Jersey Shore

Remember Jarndyce v. Jarndyce in the Charles Dickens classic Bleak House? The case drags on for so long that the only winners are the lawyers? (Not that that’s all bad.) Well, Jarndyce is playing out in a medical staff...more

3/22/2016 - Bad Faith HCQIA Hiring & Firing Injunctive Relief Motion to Dismiss

Most Imaginative Whistleblower Claim of the Month

Vicki Sheldon is the hands-down favorite to claim this month’s Most Imaginative Whistleblower Claim award. Vicki’s at-the-time husband Duane was employed at Kettering Health Network (KHN). Duane had an affair with another KHN...more

3/21/2016 - False Claims Act (FCA) Health Care Providers HITECH Meaningful Use Whistleblowers

Shocking News: Congressional Debate on Obamacare Gets Partisan

In one of the more unexpected developments in recent Congressional history, a House Ways & Means Committee vote relating to the Affordable Care Act (ACA) turned partisan. Astonishingly, all the Republicans voted one way; all...more

3/18/2016 - Affordable Care Act Congressional Intent Health Insurance Tax Liability Ways and Means Committee

A Grossly Negligent Claim Isn’t a False Claim

You have to feel sorry for whistleblower Darilyn Johnson. The former billing clerk thought she had a sure-fire, double-barrel False Claims Act (FCA) case against the medical clinic that fired her. Barrel one was her...more

3/17/2016 - False Billing False Claims Act (FCA) Health Care Providers Medicaid Medicare Whistleblowers

Finally, a Solution to Poor Physician Penmanship

From the founding of the Republic, Americans have joked about the poor handwriting of physicians. Well, all the Americans except the ones who got the wrong medicine because pharmacists misread handwritten prescriptions....more

3/16/2016 - Health Care Providers Physicians Prescription Drugs

The Downside of Being Number One

Americans are competitive. We generally think there’s nothing better than being number one—and not just at NCAA bracket time. But being number one isn’t always great. Just ask Dr. Michael Reinstein. He was the...more

3/15/2016 - Criminal Prosecution Health Care Providers Healthcare Fraud Kickbacks Medicaid Medicare

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