HortySpringer Health Law Expressions

Latest Episodes:

US v. Shah – New Intent Test for Kickbacks May 27, 2021

Show notes

The OIG and the Courts have long taken the position that a person who pays an alleged kickback can be sent to prison if the government can prove that merely “one purpose” of the payment of the kickback is to induce the referral of business that is paid for, in whole or in part, by a federal healthcare program. But what about the recipient of the kickback? What must the government prove in order to convict the recipient of the kickback? In a case of first impression, a federal circuit court’s answer to this question is nothing—the recipient’s intent is irrelevant.

Join HortySpringer attorneys Dan Mulholland and Henry Casale to find out why the court ruled the way that it did and why this decision will make it even easier for the government to enforce this criminal statute that it was before the decision.

How To Fix A Stark Problem Apr 08, 2021

Show notes

Have you discovered that one of your physician contracts is out of compliance with the Stark Law? You may be able to fix it. CMS has now developed a new way to correct noncompliance with the Stark Law without having to make a formal self-disclosure.
The recently revised Stark Regulations, at 42 CFR §411.357(h) of the new regulations, sets forth a special rule for correcting technical deficiencies and even reconciling compensation that might be in excess of fair market value.
Tune into this episode where Dan Mulholland and Joshua Hodges explain how this new rule can work for you.

New Executive Order on Regulatory Relief – A Trump Card to Play Against the Government? Jun 02, 2020

Show notes

On May 19, 2020, President Trump issued an Executive Order on Regulatory Relief to Support Economic Recovery. The purpose of the Executive Order was to remove regulatory barriers to economic recovery from the effects of coronavirus lock downs throughout the country. The Order primarily directs federal agencies to address the current economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery. But it goes farther than that. Among other things, it directs agencies to not just temporarily but permanently rescind regulations, accelerate pre-enforcement ruling procedures, decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards and consider extenuating circumstances a rationale for declining enforcement.

It then goes on to articulate the principles of fairness in administrative enforcement and adjudication and directs agencies to revise their procedures and practices in light of them. Perhaps the most important principle listed in the Order is that the Government should bear the burden of proving an alleged violation of law - the subject of enforcement should not bear the burden of proving compliance. The Order contains the standard caveat that it is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the Government or anyone else. But given that agencies are expected to follow it, it can be a useful tool to use in discussions or negotiations with the Government in a wide range of situations.

Join Henry Casale and Dan Mulholland for a new Health Law Expressions Podcast where they explain this Executive Order in more detail and suggest ways to use it to your advantage now and in the future.

Physician Burnout – Addressing a Public Health Crisis Worsened by the COVID-19 Pandemic May 18, 2020

Show notes

Under normal circumstances, physician burnout has been described as a “public health crisis” resulting in high turnover rates, inefficiency, increased medical errors, and exit from the profession. Some surveys show that nearly half of all physicians experience burnout in some form. While burnout has been attributed to numerous factors, including the demands of electronic health records and a reduction in physician autonomy, it is almost certainly going to increase and be exacerbated as a result of the current pandemic. Physicians in COVID-19 hotspots can be treating an overwhelming amount of critically ill patients and confronting death rates unlike anything they have ever seen. There have been several anecdotal reports on the effect that the COVID-19 crisis is having on physician well-being and it has been significant.
During this podcast, Horty, Springer & Mattern partners Rachel Remaley and Charles Chulack discuss burnout, its contributing (and aggravating) factors, and strategies to improve physician well-being and satisfaction.

Paycheck Protection Program – Proceed with Caution! May 04, 2020

Show notes

If your organization has received a loan from the new Paycheck Protection Program, congratulations! But like any government program, be careful! There are always strings attached. Recent controversy about large organizations getting assistance has caused regulators to warn that if you keep the money but are later found to not need it, you could be in big trouble.

To help you understand what may be at stake, tune into this timely podcast, where HortySpringer attorneys Phil Zarone and Dan Mulholland describe what you must do to document that you may not be able to cover payroll, rent or utilities without the loan and the consequences of the certification that you made to get it. They also discuss the option of repaying the loan by May 7 if you don’t need it, which can limit your exposure later on.

Coronavirus Fraud and Abuse Issues: Protections and Pitfalls Apr 08, 2020

Show notes

Many federal agencies have weighed in with various waivers, policy statements and guidance regarding arrangements between and among health care providers and their patients to address the COVID-19 pandemic. These include several blanket waivers by CMS of sanctions under the Stark Law and an OIG Policy Statement declining to impose administrative sanctions under the Federal anti-kickback statute. These actions are helpful, but should not be a blanket license to ignore these laws. In this special podcast, HortySpringer partners Dan Mulholland and Henry Casale review the recent guidance, explain what you can and can’t do and look ahead to the potential for a tsunami of False Claims Act litigation once the pandemic subsides.

Thinking of a Joint Venture? Look Before You Leap! Feb 12, 2020

Show notes

In today’s deal happy world, we’re seeing joint ventures make a comeback. Joint ventures come in all shapes and sizes; some are with physicians, some with other business partners, and some are with people you’ve never met before. Join faculty Dan Mulholland and Henry Casale as they discuss these ventures and the questions you should ask and get answered before you commit.

US ex rel. Bookwalter — The Shape of Stark to Come Jan 23, 2020

Show notes

Horty Springer and Mattern partners Dan Mulholland and Henry Casale discuss a False Claims Act case that was based on the Stark Law in which the Third Circuit Court of Appeals interpreted the Stark Law to question whether most RVU compensation models were permitted by the Stark Law. However, as proof that not even the federal courts understand the Stark Law, the Third Circuit vacated its September 17th decision and reissued its opinion on December 20. The new Opinion corrected some of the more egregious errors that were included in the September Opinion. However, it still leaves a number of questions about Stark unanswered.

Medical Marijuana and Employment: A Hot Box of Issues Mar 29, 2019

Show notes

Josh Hodges and Katie Pakler of Horty Springer and Mattern discuss the latest issues in regard to medical marijuana laws at the state level and how it can affect an employment policy. Josh and Katie discuss recent employment discrimination cases from a few different states that have legalized the use of medical marijuana. Many states are continuing to add new marijuana use laws, Josh and Katie explain how to keep on top of these laws and the importance in knowing them when crafting employment policy.

State False Claims Acts - Something Else to Keep You Up At Night Mar 29, 2019

Show notes

Horty Springer and Mattern partners Dan Mulholland and Henry Casale discuss very recent developments from the Office of Inspector General of HHS in terms of reviewing the False Claims Act at the State level and whether it complies with federal rules. Discussion includes a review of the False Claims Act to see if states will qualify for a 10 percent increase in any share of a False Claims Act settlement.