Norman Tabler, Jr.

Norman Tabler, Jr.

Faegre Baker Daniels

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Flying Pigs and False Claims

On July 7 the Fourth Circuit invoked Flying Pigs to vacate a lower federal court judgment in a Medicaid false claim case, even though neither the lower court nor any of the parties asked it to. The case started in 2007,...more

7/14/2016 - Anti-Kickback Statute Medicaid Qui Tam Settlement Agreements

Same Per-Click Rule, New Rationale

On July 7 CMS issued a proposed rule reaffirming its position that the Stark Law prohibits “per-click” rent payments when the lessor is the one referring the patients to the lessee for the “click,” e.g., the test or...more

7/12/2016 - CMS Equipment Lease Medicare Pay-Per-Click Stark Law

Pharmacy Settles Claim for Filling Forged Rx’s, as Trend Continues

There was a time when liability—criminal or civil—for drug abuse or forged prescriptions usually lay only with the abuser or the forger and those who actively helped them. Those days are long gone. First, we had PDMPs...more

7/8/2016 - CVS Drug & Alcohol Abuse Opioid Pharmaceutical Industry Physicians

Hospital Liability for Life-Saving Efforts?

Hospitals are in the business of saving lives. So they don’t usually face liability for trying to do just that. But a July 5 Georgia Supreme Court decision is a reminder that it’s up to the patient—not the hospital or...more

7/8/2016 - Fiduciary Duty GA Supreme Court Health Care Providers Hospitals Professional Negligence

When Damages May Exceed the Statutory Med Mal Cap

Dr. Steven Nathanson is the defendant in a medical malpractice case involving the death of a patient. On June 24 the court rejected his motion for summary judgment on his claim that punitive damages are barred by West...more

7/6/2016 - Health Care Providers Medical Malpractice Punitive Damages Summary Judgment

Ruling Puts Teeth in Antitrust Claims Against Dentistry Board

Remember the U.S. Supreme Court’s decision against the North Carolina Board of Dentistry last year? The court ruled that a state dentistry board composed mostly of practicing dentists may not have state-action immunity from...more

7/5/2016 - First Amendment Fourteenth Amendment Motion to Dismiss Standing Treble Damages

Clinics Pay Heavy Price for Failing to Audit Claims

Health clinics may want to review their auditing obligations and practices in light of a June 23 ruling by the Eleventh Circuit. Allstate decided to look into the billing practices of a group of Florida health clinics. ...more

7/1/2016 - Allstate False Billing Fraud Negligent Misrepresentation Unjust Enrichment

Where’s the Crime in Providing Free Medical Care?

Can it be a crime to provide free medical care? That’s the question presented by a post-conviction motion by the so-called King of Nursing Homes, Dr. V. Kuchipudi. Dr. K was convicted on nine counts of violating the...more

6/28/2016 - Anti-Kickback Statute Medicare Patient Referrals Physicians

Nurse’s Age Discrimination Case May Proceed

A California federal court has rejected a hospital’s motion for summary judgment in a case brought by a former nurse who claims she was fired for being too old. Seventy-year-old Lavon Ramsey had worked at Fairchild...more

6/28/2016 - Age Discrimination HIPAA Hiring & Firing Summary Judgment

When Inside Knowledge Is a Handicap to a Whistleblower

Here’s a riddle: The whistleblower is a former employee of the defendant, with inside knowledge of the operations at the heart of his qui tam suit. How can that inside knowledge be a handicap in pressing his claim? A June...more

6/27/2016 - False Claims Act (FCA) Medicaid Medicare Qui Tam Rule 9(b) Whistleblowers

Broad Examination of Narrow Networks: First-of-Its-Kind Study Examines Hospitals in Medicare Advantage Plans

On June 20, 2016, The Kaiser Family Foundation issued the first ever broad-based study of Medicare Advantage hospital networks. The study — "Medicare Advantage Hospital Networks: How Much Do They Vary?"— analyzed 409 plans in...more

6/23/2016 - HMOs Hospitals Medicare Medicare Advantage

Court Rejects Qui Tam Attack on Standard On-Call Contract

On June 10 the Third Circuit affirmed a lower court’s dismissal of a physician’s qui tam action against Pottstown Memorial Medical Center (PMMC) for violating the Anti-Kickback Statute (AKS) and False Claims Act (FCA). And...more

6/16/2016 - Anti-Kickback Statute Corporate Counsel False Claims Act (FCA) Health Care Providers On-Call Employees Qui Tam

False Claims Charges vs. Eye Clinic Sufficiently Specific

Michael Sorenson is an optometrist formerly employed by Outreach Diagnostic Clinic. After he quit, he filed a False Claims action against the eye clinic and the two doctors who owned it. He alleged that the clinic routinely...more

6/9/2016 - False Claims Act (FCA) Health Care Providers Medicare Motion to Dismiss

8th Cir. Rejects Dr.’s Grab-Bag Retaliation Suit

Dr. Alaa Elkharwily lost his job at Albert Lea Clinic, but he didn’t go quietly. He sued the clinic and eight related organizations and individuals alleging just about everything a terminated doctor can allege in Minnesota:...more

5/26/2016 - EMTALA Retaliation Summary Judgment Termination

And You Thought RAC Audits Couldn’t Get Any Worse

If there’s one thing that unites the hospital industry—even the fiercest competitors—it’s hatred of audits by recovery audit contractors, or RACs. Why? For one thing, because RACs operate on a contingency fee basis. They...more

5/25/2016 - CMS Contingency Fees GAO Hospitals Recovery Audit Contractors (RACs)

Site-Neutral Billing Exemptions

The Balanced Budget Bill Act of 2015 has a site-neutral billing provision relating to off-campus hospital outpatient departments (HOPDs). Those are facilities away from the hospital campus but certified as part of the...more

5/24/2016 - Health Care Providers Healthcare Facilities Hospitals Medical Reimbursement Medicare Reimbursements

No Good Deed Goes Unpunished

Oscar Wilde observed, “No good deed goes unpunished.” Whistle-blower Michael Cascio discovered the truth of that saying when a federal court threw out his qui tam case against a national wound care provider that partners...more

5/18/2016 - Fraud Health Care Providers Motion to Dismiss Qui Tam Whistleblowers

Qui Tam Defendant’s Confidentiality-Breach Counterclaim Fails

What if a whistleblower discloses the protected health information (PHI) of privately insured patients in making the claim that his employer submitted false Medicare claims? And what if that violates a confidentiality...more

5/16/2016 - Confidentiality Agreements Motion to Dismiss PHI Qui Tam Whistleblowers

Biblical Name No Shield Against Fraud Charge

On May 2 a New Orleans federal jury found that Psalms 23 DME, LLC—its Biblical name notwithstanding–was part of a fraud scheme that illegally billed Medicare $3.2 million. In 2013 the government indicted Psalms 23 owner...more

5/10/2016 - Durable Medical Equipment False Billing Health Care Providers Healthcare Fraud Medicare

Attorneys Pay Heavy Price for Block-Billing

Lawyers are aware of the increasing sensitivity—and hostility—of clients to block-billing: lumping more than one activity into a single time entry. A new Fifth Circuit decision shows that courts can be equally sensitive—and...more

5/4/2016 - Attorney's Fees Community Health Systems False Claims Act (FCA) Hospitals Qui Tam Young Lawyers

When Two Belts & Suspenders May Not Be Enough

Boston Children’s Hospital says that when it terminated a research fellow’s employment, he took the laptop he used in his work to a computer forensics company and had all the data, including data owned by the hospital,...more

5/2/2016 - Conversion Hospitals Motion for Judgment Replevin

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

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