Archive for July, 2011

Update – Constitutionality of the Patient Protection and Affordable Care Act

July 22, 2011 Leave a comment

My law firm colleagues, Bruce D. Platt and Sheryl Rosen in Akerman’s Tallahassee office have prepared the following update on the constitutionality of the Patient Protection and Affordable Care Act —


Multiple court challenges have resulted from passage of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010) (“PPACA”). 

On June 29, 2011, the United States Court of Appeals for the Sixth Circuit upheld the individual mandate in PPACA as constitutional. The Court in Thomas More Law Center v. Obama, 10-2388 (6th Cir.), concluded that imposition of the individual mandate is within Congress’ power under the Commerce Clause to regulate activities that substantially affect interstate commerce. The Sixth Circuit’s decision affirmed the district court’s holding in Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. Oct. 7, 2010).  Although Thomas More upholds PPACA, several other appeals are still pending in various circuits, with others still at the district court level. The cases currently on appeal over substantive issues are set forth below.  Cases on appeal regarding plaintiffs’ standing to challenge PPACA are excluded because they do not reach substantive holdings:

Virginia v. Sebelius, 11-1057, 11-1058 (4th Cir.) and Liberty University, Inc. v. Geithner, 10-2347 (4th Cir.) – The lower court in Virginia v. Sebelius, 728 F.Supp.2d 768 (E.D.Virginia Dec. 13, 2010), concluded the individual mandate violated the Commerce Clause and severed the mandate from PPACA. Conversely, the lower court in Liberty University, Inc. v. Geithner, 753 F.Supp. 2d 611 (W.D. Virginia Nov. 30, 2010), concluded that the Commerce Clause provides sufficient authority for PPACA’s insurance mandate. The Virginia and Liberty appeals have been consolidated. Oral argument was held on May 10, 2011. No decision has been released.

Florida v. U.S. Dept. of Health and Human Services, 11-11021 and 11-11067 (11th Cir.) – The lower court in Florida v. U.S. Dept. of Health and Human Services, __ F.Supp. 2d __, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011), struck down the entire PPACA, concluding that the decision to refrain from purchasing health insurance is not economic activity, so the individual mandate unconstitutionally regulates inactivity. Oral argument took place on June 8, 2011. No decision has been released.

Seven-Sky v. Holder, 11-5047 (D.C. Cir.) – This case appeals the lower court’s decision in Mead v. Holder, 766 F.Supp. 2d 16 (D.D.C. Feb. 22, 2011), which upheld PPACA. The appeal is scheduled for oral argument on Sept. 23, 2011.

U.S. Citizens Association v. Sebelius, 11-3327 (6th Cir.) – This case appeals the lower court’s decision in U.S. Citizens Association v. Sebelius, 10-1065 (N.D. Ohio July 1, 2011). In that case, the district court became bound by the Sixth Circuit’s holding in Thomas More and entered summary judgment for defendants. The appeal is still at the briefing stage. No oral argument has been scheduled.

A Look Ahead

 Various commentators believe the Supreme Court will be the ultimate arbiter of whether PPAGA is constitutional (Alexander Bolton, Lawmakers Press Supreme Court for Verdict on Health Care LawThe Hill, Feb. 2, 2011; Editorial, 3 to 2 for Health Care Reform, N.Y. Times, Feb. 25, 2011).  Even Judge Vinson of the Northern District of Florida stated in his March 3, 2011 order, “Almost everyone agrees that the Constitutionality of the Act is an issue that will ultimately have to be decided by the Supreme Court of the United States. It is very important to everyone in this country that this case moves forward as soon as practically possible.” Fla.  v. U.S. Dept. of Health and Human Servs., No. 3:10-cv-00188-HEH, 2011 WL 285683 (N.D. Fla. Mar. 3, 2011) (order clarifying summary judgment order dated Jan. 31, 2011). 

However, it doesn’t appear likely that any of the District Court rulings will be appealed directly to the Supreme Court.  The Supreme Court most frequently grants direct appeals when so requested by the federal government (in a posting of Kevin Russell to SCOTUSblog).  However, thus far, the only writ of certiorari submitted for the five cases above is a writ by Virginia in Virginia v. Sebelius, and the federal government has not joined the request for cert.

If or when the Supreme Court considers the issue, some scholars believe the court’s four liberal justices – Justices Ginsberg, Breyer, Sotomayor, and Kagan – will vote to uphold the law, but there’s no clear consensus on how the five more conservative justices will rule, especially Justices Kennedy, Alito, and Roberts (Robert Barnes, Supreme Court Watchers: Roberts, Alito No Sure Bets Against Health Care Mandate, Washington Post, Feb. 13, 2011; Ben Adler, Will the Supreme Court Rule on Health Care Reform?, Newsweek, Dec. 15, 2010).

Owner of Orlando Diagnostic Imaging Services Company Has Duty to “Understand Medicare and Medicaid Billing Requirements”

July 22, 2011 Leave a comment

The HHS Office of Inspector General (OIG) announced yesterday that Administrative Law Judge Steven T. Kessel has upheld the OIG’s exclusion of Michael D. Dinkel from participation in all Federal health care programs for a period of 8 years.

According to the press release, the ALJ found that Dinkel was personally responsible for ensuring that his company, Drew Medical, billed and collected reimbursement appropriately and that he demonstrated reckless indifference to the propriety of the claims that his company presented.  The ALJ also held that Dinkel had a duty to understand Medicare and Medicaid billing requirements and to apply them scrupulously to the claims that he caused to be presented.

This case revolved around false claims filed by Drew Medical to the Medicare and Medicaid programs for a radiological procedure known as venography.   Drew Medical had not actually performed any such services.

The OIG did not consider that the payment of fines alone was sufficient and that exclusion from participating in government healthcare programs was appropriate.

Categories: Fraud and Abuse

Industry Recognition of Akerman’s Lawyers and Practices

July 20, 2011 Leave a comment

Chambers USA, The Legal 500, and several other publications have again ranked Akerman as a leading law firm in numerous practice areas, including healthcare.

Chambers USA has ranked 14 of the firm’s practices in Florida. On a national scale, The Legal 500 has ranked Akerman as one of the best firms in the United States for Corporate M&A, Real Estate, Land Use, Construction, and Immigration.

A record number of Akerman lawyers were also recognized this year with Chambers listing 48 Akerman lawyers; Super Lawyers listing 76 in Florida; Florida Trend Legal Elite listing 35; and The Legal 500 listing 19.

This is in addition to numerous local publications that continue to recognize the caliber of the Akerman team. 

The recognition of Akerman and its many exceptional lawyers is a direct reflection of our commitment to our clients. 

Here are the links to the various publications: 

Chambers USA

The Legal 500

Super Lawyers Florida

Florida Trend Legal Elite

Complete list of firm recognition


Categories: Akerman

ACOs are not for Sissies

July 14, 2011 Leave a comment

This is the title of a presentation I gave to the Tampa Bay MGMA on July 12.

Many have touted ACOs as one of the most critical reforms in the Affordable Care Actbecause of its focus on realigning healthcare provider financial incentives to patient-centered and preventive care and away from procedure/volume based care.  I agree with that assessment.  Unfortunately,  the proposed regulations (which have been justifiably bashed by many in the healthcare industry) have done much to derail ACOs.

The final regulations will hopefully incorporate many of the criticisms so that the movement toward ACOs can continue.  According to two industry leaders, ACOs must be successful: 

 “The Accountable Care Organization: Whatever Its Growing Pains, The Concept Is Too Vitally Important To Fail” — Health Affairs, 30, no. 7 (2011):1250-1255

“The accountable care organization model is intended as an option both for Medicare and for non-Medicare, commercial health care services. However, the general model and the specific shared savings model proposed for Medicare have come under criticism. Much of the criticism is valid and should be addressed.  However, none should serve to prevent the evolution of this model, because the alternative to a fundamental restructuring of how health care is delivered and paid for in the United States is likely to be a type of indiscriminate cost cutting that will leave the nation with a damaged health care system, reduced access to care services, and declining quality of care.”

“ACOs and Medicare … quo vadis?” — MGMA Connexion, July 2011
“[T]he  accountable care organization (ACO) concept — with its emphasis on improved care coordination and payment based on measurable value rather than volume — holds great promise for ensuring that our healthcare system is safer and offers higher quality and more cost-effective care while increasing patient satisfaction.”
“One hopes that the new Center for Medicare and Medicaid Innovation will be a bit more adventurous (and a bit less prescriptive) in creating experiments and demonstration projects that stand a real chance of making the potential of ACOs a reality. If not, our healthcare system may be subjected to even more draconian intervention in the quest to control Medicare costs.”

So, what should healthcare leaders be doing now?
Until the final ACO regulations come out, there are limits to what can be done intelligently.   Doing nothing is one alternative, but it may not be the best alternative.  The ACO field is full of consultants, and each of them has his or her own plan on how to proceed.  All of their plans focus on what is needed to create and sustain a successful ACO (assuming that the final regulations don’t get in the way). 

If a group is interested in establishing or being part of an ACO, I believe it is worthwhile for them to engage an advisor who is experienced in health care — both from an administrative and from a clinical point of view — to help them assess their readiness for accountable care. 
One consulting group, Harpeth Consulting, has listed a set of “strategic competencies” that it views as critical for a sustainable ACO:
•Organization culture of teamwork
•Relationships with other providers
•IT infrastructure for patient population management and care coordination
•Infrastructure for monitoring, managing, and reporting on quality factors 
•Ability to manager financial risk
•Organizational structure to receive and distribute payments or savings bonuses
•Resources for patient education and support
•Ability to aggressively disseminate best practices  
•Ability to manage financial risk
•Organizational structure to receive and distribute payments or savings bonuses
•Resources for patient education and support
•Ability to aggressively disseminate best practices
Part of the assessment of a group’s readiness for accountable care will be to see how they measure up in each of these areas.
For over 20 years, there have been many failed models of health care integration – PPMs, IPAs, PHOs, Hospital employment and acquisition of physicians, etc.
ACOs represent the next wave of integration and care coordination.
Groups with foresight and guts (i.e., not sissies) can take the leap and get in front of the ACO learning/planning curves.

HIT, Small Physician Practices, and IPAs

July 2, 2011 Leave a comment

In its June 2011 Research Brief, the National Institute for Health Care Reform reports that “lessons from independent practice associations (IPAs) — net-works of small medical practices — can offer guidance about overcoming barriers to HIT adoption and use” in small physician practices.  The study found that IPAs, as local networks of independent physician practices, promoted the development of HIT-knowledgeable physician leaders who were able to gain the trust of their less HIT experienced colleagues in coordinating efforts to deal with risk-based managed care contracts.

The study concludes that “IPA experiences with HIT adoption can offer insights for other entities charged with helping physicians in small practices overcome barriers to HIT adoption and use.”

(The study may also provide critical insights to, and hope in, dealing effectively with the even greater hurdles that physician groups are facing in their coming together to form accountable care organizations, where HIT will be critical to success.)

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