William P. Morrow, JD 2013 Clerk, Honorable Donald Hebert Opelousa, LA

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1 THE HEALTH LAWYER IN THIS ISSUE The Elephant in the Room: Under the Medicare Secondary Payer Act, When is it Necessary to Establish a Medicare Set-Aside Fund in Liability Cases?... 1 Chair s Column... 2 Who You Gonna Call? Competing/ Coordinating Roles of the Medical Staff Attorney and the Hospital Attorney State of the Section The Fair Market Value Implications of Health Systems Losing Money on Their Employed Physicians The Revival of the Responsible Corporate Officer Doctrine? Section Calendar... Back Cover THE ELEPHANT IN THE ROOM: UNDER THE MEDICARE SECONDARY PAYER ACT, WHEN IS IT NECESSARY TO ESTABLISH A MEDICARE SET- ASIDE FUND IN LIABILITY CASES? William P. Morrow, JD 2013 Clerk, Honorable Donald Hebert Opelousa, LA When it comes to the settlement of cases involving a Medicare beneficiary, attorneys can be confused as to how to adequately consider Medicare s interests and when to establish Medicare Set Aside ( MSA ) funds, especially in liability cases. The purpose of MSA funds is to provide funding to an injured worker in order to pay for future medical expenses that would otherwise be covered by Medicare. One of the biggest questions attorneys face when it comes to MSAs is determining whether or not it is necessary to establish an MSA fund in liability cases in order to avoid the placement of a Medicare lien on the settlement. Although there are laws directing attorneys to establish an MSA fund in workers compensation cases, there are no laws specifically directing attorneys to establish an MSA fund in liability cases. Rather, attorneys are merely left with memoranda from the Centers for Medicare & Medicaid Services ( CMS ) for direction relating to liability MSAs ( LMSAs ). This article will outline the progression of Medicare and MSAs, the current laws relating to Medicare, the Medicare Secondary Payer ( MSP ) Act, MSA funds, and the funds purpose in workers compensation and liability cases. The article will also address the arguments for and against MSAs in liability cases and whether or not an MSA fund in a liability suit is even necessary. The Progression of Medicare President Lyndon B. Johnson created the Medicare program when he signed into law the Social Security Act of 1965, which was an amendment to prior Social Security legislation. 1 Medicare is a complicated federal program that is divided into four different groups: Part A-hospitals, Part B-medical doctors, Part C-private health plans, and the most recent addition, Part D-prescription medications. 2 Medicare does not pay for all medical services; however, it covers certain medical services and supplies in hospitals, doctors offices, and other healthcare settings. 3 continued on page 3 Volume 26, Number 1, October 2013

2 Chair s Corner Are You a Health Lawyer? As I pondered (for weeks!) what I would write about in my first column as this year s Chair of the Health Law Section, I did a couple of things. First, I searched for old copies of the Health Lawyer. I managed to find 10 in various locations throughout the house several filed away in the bookshelves of my home office, a few in the reading table next to the chair I usually inhabit in the family room and still more (waiting to be read!) in the basket next to the bed. As I read through each column some by David Douglass, some by Linda Baumann and still others by David Johnson, I realized these are hard acts to follow (seriously, who could ever top that Acoma Pueblo column??) 1 So, in an effort to stem the rising sense of panic I was experiencing as the weeks of August raced by, each marked off by our Executive Director, Wanda Workman, helpfully reminding me during our weekly calls that my first column was due the first week of September, I decided I needed another approach. I decided that instead of searching through pastchairs columns for inspiration, I should look at my own involvement in the Section. Why have I been involved with the ABA specifically the Health Law Section, for more than 15 years? I have been a government attorney for my entire legal career how did I end up in the Health Law section and not the Administrative Law section? I guess the answer is that I think of myself as a health lawyer. I spent the first nineteen years of my legal career at the Department of Health and Human Services: six years in the Office of General Counsel and 13 years in-house at The Centers for Medicare & Medicaid Services. It was during those years that I became involved with the ABA Health Law Section, initially through speaking at conferences and writing, followed by involvement with publications and planning committees. Although my own professional focus for many years was on the narrow area of payment and reimbursement, I was sucked in by the ever-growing list of topics that fall under the heading of healthcare law: privacy, employee benefits, fraud and abuse, physician issues, public health and policy, to name just a few. All were topics that not only crossed my desk at the office, but also were the subject of much public debate. When I had the opportunity to make a career change five years ago and became an administrative law judge, I asked myself whether I was 1 See The Health Lawyer, Vol. 24, No. 6 at 2, August, The Health Lawyer (ISSN: ) is published by the American Bar Association Health Law Section, 321 N. Clark Street, Chicago, IL Address corrections should be sent to the American Bar Association, c/o Member Records. Requests for permission to reproduce any material from The Health Lawyer should be addressed in writing to the editor. The opinions expressed are those of the authors and shall not be construed to represent the policies or positions of the American Bar Association and the ABA Health Law Section. Copyright 2013 American Bar Association Officers and Council of the ABA Health Law Section are as follows: Chair Kathleen Scully-Hayes Social Security Administration Baldwin, MD 866/ x11443 Chair-Elect Michael E. Clark Duane Morris, LLP Houston, TX 713/ Gregory L. Pemberton Ice Miller Indianapolis, IN 317/ Michelle Apodaca Waller Law Firm Austin, TX 512/ wallerlaw.com Denise Glass Fulbright & Jaworski LLP Dallas, TX 214/ Eugene M. Holmes Proskauer Rose LLP Washington, DC 202/ THE Young Lawyer Division Liaison Matthew R. Fisher Mirick, O Connell, DeMallie & Lougee, LLP Worcester, MA 508/ Board of Governors Liaison William Thomas Coplin, Jr. William Thomas Coplin, Jr. Demopolis, AL 334/ HEALTH LAWYER the aba health law section Vice Chair William W. Horton Johnston Barton Proctor & Rose, LLP Birmingham, AL 205/ Secretary C. Joyce Hall Watkins & Eager Jackson, MS 601/ Section Delegates to the House of Delegates Council Charles M. Key UT Medical Group, Inc. Memphis, TN 901/ John H. McEniry IV medistat Specialized Pharmacy Services Foley, AL 251/ Shannon H. Salimone Holland & Knight LLP Tallahassee, FL 850/ Financial Officer Alexandra Hien McCombs Concentra Addison, TX 972/ concentra.com Immediate Past Chair David L. Douglass Sheppard Mullin Washington, DC 202/ sheppardmullin.com J. A. (Tony) Patterson, Jr. Northwest Healthcare Corporation Kalispell, MT 406/ Robyn S. Shapiro Drinker Biddle & Reath LLP Milwaukee, WI 414/ W. Thomas Smith University of Florida/ College of Pharmacy Gainesville, FL 352/ Hilary H. Young Joy & Young, LLP Austin, TX 512/ Section Director Wanda Workman American Bar Association 321 N. Clark Street Chicago, IL T: 312/ F: 312/ The Health Lawyer Editor Marla Durben Hirsch Potomac, Maryland 301/ continued on page 9 2 The Health Lawyer Volume 26, Number 1, October 2013

3 The Elephant in the Room continued from page 1 Currently, Medicare provides health insurance to 1) people 65 or older, 2) people of any age with End- Stage Renal Disease ( ESRD ) (permanent kidney failure requiring dialysis or a kidney transplant), or 3) people under 65 with certain disabilities. 4 In order to obtain Medicare Part A without paying at the time of service, a beneficiary or his/her spouse must have previously paid into the Social Security system by way of paying Medicare taxes for at least 10 years (40 quarters). 5 Applications for Medicare are submitted to the U.S. Social Security Administration. 6 The responsibility for overseeing and administering the Medicare program belongs to CMS. 7 Medicare is paid for through two trust fund accounts held by the U.S. Treasury, the Hospital Insurance ( HI ) Trust Fund and the Supplementary Medical Insurance ( SMI ) Trust Fund. 8 Originally, Medicare was defined as the primary payer for the healthcare services it covers, except for those services that were covered by workers compensation. 9 In 1980, however, Congress enacted the Omnibus Budget Reconciliation Act that created the MSP Act. 10 The MSP Act expanded the definition of primary payers, resulting in Medicare being deemed the secondary payer in circumstances in addition to workers compensation where there was a potentially responsible third party payer, such as group health plan, liability, and no-fault insurance. 11 The purpose of enacting this change in Medicare was to shift the burden of payment from the Medicare program to private sources of payment. 12 As a result of the MSP Act, MSA funds were derived to protect Medicare s interest. In 2003, Congress enacted the Medicare Modernization Act ( MMA ), which added Part D to Medicare. 13 The purpose of the MMA was to help Medicare beneficiaries pay for prescription Volume 26, Number 1, October 2013 drug medications. 14 As a result, prescription medications related to the injured party s injuries now have to be included in the MSA fund, resulting in the cost of funding a MSA fund to become more expensive. 15 In 2007, Congress enacted Section 111 of the Medicare, Medicaid and SCHIP Extension Act ( MMSEA ), which requires that for all claims in workers compensation, liability, group health plan, and no-fault insurance where an injured party is at issue, it must be determined if that injured party is eligible for Medicare benefits. 16 In such a case where an injured party is discovered to be a Medicare beneficiary, certain data must be collected and reported to Medicare each quarter. 17 In addition to quarterly reporting, all settlements with a Medicare beneficiary must be reported to Medicare. 18 The future of Medicare seems grim. Medicare is funded by tax dollars, and, as a result of it being an entitlement program, it will face a $45.8 trillion deficit within the next 75 years. 19 Due to a lack of close scrutiny, as well as the abundance of fraud, Medicare overpays millions of dollars a year, which has placed the system on the brink of financial disaster. 20 According to the 2012 Annual Report of the Boards of Trustees of the HI and SMI Trust Funds, as of 2011, Medicare covered 48.7 million people: 40.4 million aged 65 and older, and 8.3 million disabled. Total expenditures in 2011 were $549.1 billion. Total income was $530.0 billion, which consisted of $514.8 billion in non-interest income and $15.2 billion in interest earnings. 21 Since 2008, HI Trust Fund expenditures have exceeded income, and the projected amounts continue to do so through the short-range period until the HI Trust Fund becomes exhausted in On the other hand, the SMI Trust Fund is adequately financed over the next 10 years and beyond because The Health Lawyer premium and general revenue income for Parts B and D are reset each year to match expected costs. 23 Between 2008 and 2030, the number of people receiving Medicare benefits is projected to rise from 45 million to 78 million. 24 With the aging population and expected increases in overall healthcare costs, Medicare spending is projected to grow at a faster rate than the overall economy. 25 It has become apparent that Medicare is looking for ways to preserve its everdepleting reserves. How MSAs Work The reasoning for the set aside process is that proceeds must be available for future medical expenses to cover treatment of injuries related to the incident. 26 If an injured party s recovery includes funds for future medical expenses, those funds should be set aside to pay for future expenses that are related to the claim. 27 Otherwise, Medicare may deny future benefits for necessary medical services until the entire settlement amount is exhausted. 28 When a MSA fund is needed, it should be part of the settlement agreement between the beneficiary and the third party payer, which can be funded by depositing a lump sum, or a structured settlement, into an interest bearing account. 29 During the MSA process, the attorney creating the MSA fund should consider the present value of the claimant s future medical expenses, as well as the claimant s financial condition. 30 The only way to insure that CMS will not seek additional payments from the injured worker, insurer, and/or the attorneys at a later date is to obtain CMS prior approval of a proposed MSA fund. 31 The set aside amount in a workers compensation settlement is calculated by an intricate process, which includes establishing the future continued on page 4 3

4 The Elephant in the Room continued from page 3 medical treatment expected for the worker, as well as reviewing what part of the services and treatment are covered by Medicare. 32 Once a settlement is reached, the claimant s attorney should request from Medicare a demand letter, while at the same time placing the settlement proceeds into an escrow account until the final demand is determined. 33 After the issuance of the final demand and the disbursement of funds to the claimant, Medicare requires reimbursement of its conditional payments, and may charge interest until the reimbursement is made. 34 Medicare s reimbursement claim is limited to Medicare payments for medical services resulting from the incident, but does not include charges relating to a pre-existing condition. 35 Laws Relating to Medicare and MSAs Medicare is prohibited from making a payment if payment has been made or can reasonably be expected to be made by a third party, including workers compensation insurance, any liability or no-fault insurance, or an employer group health plan. 36 Specifically, the United States Code states that Medicare may make payment under this subchapter with respect to an item or service if a primary plan described in subparagraph (A) (ii) has not made or cannot reasonably be expected to make payment with respect to such item or service promptly shall be conditioned on reimbursement If it is shown that a primary payer has or had the responsibility to make payment for services, the MSP provisions clearly state that entities that receive payment from a primary payer must reimburse Medicare for such payments. 38 Although no law specifically states the need to establish a LMSA fund, in the case of a liability settlement, the Code of Federal Regulations provides, [i]f the settlement agreement allocates certain amounts for specific future medical services, Medicare does not pay for those services until medical expenses related to the injury or disease equal the amount of the lump sum settlement allocated to future medical expenses. 39 Furthermore, when a provider submits a claim to Medicare, Medicare may conditionally pay the provider while also reserving the right to reimbursement from the primary payers. 40 This occurs when the primary payers do not pay by a certain time period, resulting in healthcare providers choosing to submit bills to CMS to obtain payment. 41 When Medicare conditionally pays medical expenses, it is the secondary payer, and may assert a Medicare lien against the settlement. 42 Through 42 U.S.C. 1395y(b) (2)(B), CMS is empowered with not only subrogation rights, but also the right to bring an independent action to recover the conditional payment it made, as well as double damages plus interest from any primary payer or anyone who receives a third party payment, which may include the plaintiff s attorney. 43 Once settlement has been reached, Medicare will issue a recovery demand letter. 44 Medicare may charge interest if the conditional payments are not paid back within 60 days of notice. 45 Section 111 of the MMSEA amended the MSP Act by imposing reporting requirements on liability insurers who pay settlements or judgments to any personal injury plaintiff who is a Medicare beneficiary. 46 Medicare s past interest includes reimbursement for injuryrelated medical treatment beginning from the date of injury to the date of payment or judgment, and its future interest includes payment for injuryrelated medical treatment, which occurs after the case has settled or a verdict has been rendered. 47 Section 111 reporting requirements enhanced Medicare s ability to identify secondary payer circumstances and allowed it to recover conditional payments by forcing third party payers to disclose settlements, payments, and other awards to Medicare beneficiaries. 48 MSAs in Workers Compensation Cases The law treats MSAs in workers compensation cases differently from MSAs in liability cases by specifically requiring MSAs in workers compensation cases. The United States Code requires the submission of information by or on behalf of liability insurance (including self-insurance), no fault insurance, and workers compensation laws and plans. 49 This information is also required by Section 111 of the MMSEA. 50 However, the law is more specific when it comes to cases involving workers compensation. As mentioned above, Medicare, as a secondary payer, may not make a payment if payment has been made or can reasonably be expected to be made under a workers compensation law or plan of the United States. 51 According to the MSP Act, when an injured worker who is a Medicare beneficiary, or who may become a Medicare beneficiary within the next 30 months, settles a workers compensation claim, both the workers compensation insurer as well as Medicare may have overlapping responsibility for payment of future medical expenses. 52 When it comes to a worker who has both workers compensation and Medicare coverage, CMS s role is to ensure that Medicare is protected when a workers compensation claim is settled, and the settlement includes payment of future medical expenses. 53 CMS has maintained that all beneficiaries and claimants must consider and protect 4 The Health Lawyer Volume 26, Number 1, October 2013

5 Medicare s interests when resolving workers compensation cases that include future medical expenses. 54 The device used to protect Medicare s interests is a Workers Compensation Medicare Set-Aside Arrangement ( WCMSA ). 55 The procedure available for this purpose at the time of settlement is to set aside the portion of the settlement that applies to Medicare-covered items and services, and then obtain CMS approval of the allocation. 56 Workers compensation settlements that only include past medical expenses constitute compromises, while workers compensation settlements that provide for payment of future healthcare expenses are considered commutations. 57 If a component of a settlement is a commutation, Medicare payments are excluded until medical expenses related to the injury or disease equal the amount of the lump sum payment. 58 The computation of the total settlement amount includes wages, attorney fees, all future medical expenses (including prescription drugs), and repayment of any Medicare conditional payments. 59 An attorney who is handling a workers compensation matter may submit a proposed MSA fund for review by CMS if his/her client is currently a Medicare beneficiary with a settlement amount greater than $25,000, or if his/ her client has a reasonable expectation of Medicare enrollment within 30 months of the proposed settlement date, and the anticipated total settlement amount for all future medical expenses and disability or lost wages over the life or duration of the settlement agreement is expected to be greater than $250, An individual has a reasonable expectation of Medicare enrollment within 30 months if: 1) the individual has applied for Social Security Disability Benefits; 2) the individual has been denied Social Security Disability Benefits but anticipates appealing that decision; 3) the individual is in the process of appealing and/or re-filing for Social Security Disability Benefits; 4) the individual is at least 62 Volume 26, Number 1, October 2013 years and six months old; or 5) the individual has an ESRD condition but does not yet qualify for Medicare based upon ESRD. 61 Therefore, if a workers compensation settlement is greater than $250,000, and the claimant is reasonably expected to become a Medicare beneficiary within 30 months of the settlement date, then a CMS-approved MSA arrangement is appropriate. 62 CMS Memoranda Regarding MSAs in Liability Cases Unlike the language requiring MSAs in workers compensation cases that is in the United States Code and in the MMSEA, there is currently no law requiring the establishment of a MSA fund in liability cases. When it comes to how CMS would like attorneys to handle liability cases in order to prevent a lien being placed on the settlement, instead of promulgating binding regulations, it has relied on memoranda. The purpose of the memoranda that CMS issues is to inform the public about any changes CMS deems important relating to the settlement of a case that involves Medicare s interest. On September 30, 2011, CMS issued a specific memorandum regarding the possible requirement of MSA funds in liability cases. 63 The memorandum stated that where the beneficiary s treating physician certifies that treatment for the injury has been completed by the date of the settlement, and that no future medical treatment for that injury will be necessary, Medicare will consider its interest in regards to the future medicals for that particular settlement satisfied. 64 However, if the beneficiary receives additional settlements that are related to the underlying incident, (s)he must obtain a separate physician certification. 65 CMS indicated that it would consider an LMSA fund necessary in instances where the treating physician certifies the need for ongoing treatment and/or future medical services. 66 In such a situation, CMS has essentially implied that a The Health Lawyer LMSA fund is the appropriate means of ensuring that Medicare s interests have been considered. 67 On June 15, 2012, CMS issued an advance notice of proposed rulemaking ( ANPRM ), where it asserted its authority to make sure that current Medicare beneficiaries, as well as potential beneficiaries, use funds from their settlements to pay for future medical treatment they may receive that is related to their settlement, in order for costs not to be shifted to Medicare. 68 The ANPRM that CMS issued is the first time CMS gave any guidance to future medicals, which has become an issue that has caused disputes between parties trying to settle claims. 69 According to CMS, [t]he primary purpose of this ANPRM is to respond to affected parties requests for guidance on future medicals MSP obligations, specifically, how beneficiaries or potential beneficiaries, can satisfy those obligations effectively and efficiently. 70 The rationale behind CMS s ANPRM is that if a Medicare beneficiary or potential beneficiary obtains a settlement, and has received or anticipates to receive Medicare covered medical treatment and services after the date of the settlement, then (s)he is required to satisfy Medicare s interest in respect to the future medicals that are related to the settlement, using one of the options outlined later in the ANPRM. 71 To date CMS not provided any additional guidance nor indicated whether it will promulgate new regulations on the subject. It must be noted that in a workers compensation case, the insurer s obligation to continue payment exists for as long as the medical condition is still present, yet in a liability insurance case, there is no contractual obligation to provide medical treatment. 72 Arguments Against the Current Use of MSA Funds in Liability Cases When it comes to liability cases, the issue regarding the use of MSAs continued on page 6 5

6 The Elephant in the Room continued from page 5 revolves around the question of whether an MSA fund is required. There are those who are in favor of the use of MSA funds in liability settlements and those who are against such use. The most notable argument against the use of an MSA fund in a liability settlement is that the United States Code or Code of Federal Regulations does not specifically require that a LMSA fund be created and sent to Medicare for review. 73 As noted above, the Code of Federal Regulations specifically provides guidance related to future medical provisions in lump sum settlements for workers compensation cases, but there are no similar guides for liability cases, 74 and the September 30, 2011 memorandum doesn t provide much specific guidance as to how to address the LMSA issue or what process CMS may require. 75 Moreover, [n]o rule, requirement or other statement of policy that establishes a substantive legal standard...shall take effect unless it is promulgated by the secretary by regulation This fact alone seems to make the CMS memoranda only a suggestion rather than a requirement. The issue is so ambiguous that in February 2011, The American Bar Association ( ABA ) passed a resolution urging CMS and Congress to conclusively state that LMSA funds are not required in liability cases because there is no statutory basis for them under the MSP Act. 77 Moreover, although CMS may be able to argue that a payment has been made, and that Medicare should be a secondary payer to that portion of the settlement when a personal injury settlement makes a specific allocation for future medical expenses, a stronger counter argument may be that regulations dealing with Medicare as a secondary payer to post-settlement medical expenses are only specific to workers compensation cases, which weakens the argument that the MSP statute applies to future medical expenses in personal injury cases. 78 It is much more challenging to determine the amount of future medical expenses in a liability case than it is in a workers compensation case. 79 In workers compensation, three different areas of recovery are permitted, which consist of indemnity or wage loss, past medicals, and future medicals, while in the liability context, in order to determine the amount of future medical expenses, there are many more items to consider, such as mental anguish and pain and suffering. 80 Even if one argues that the MSP statute applies to a specific allocation of future medical expenses in personal injury cases, Medicare s authority to disregard a settlement allocation that appears to shift costs onto Medicare refers only to the treatment of a work-related condition. 81 Moreover, CMS position that parties must reasonably consider Medicare s interest regarding future medical expenses in personal injury cases may be unenforceable due to a lack of legal authority. 82 Arguments for the Use of MSA Funds in Liability Cases Those who are in favor of the use of MSA funds in liability settlements believe that the MSP Act has been interpreted to include future medicals, and that Medicare s authority to demand that its interests be protected against future Medicare covered medical treatment stems from not only the general intent of the MSP statute, but also 42 U.S.C. 1395y(b)(2)(A). 83 They argue that a settlement, or at least a portion of one, by a primary payer given to the injured party is considered a payment that has been made by the primary payer for the injured party s future Medicare medical treatment. 84 Specifically, the U.S. Code notes that Medicare cannot make payment once payment has been made. 85 Furthermore, those in favor of the use of MSA funds in liability cases believe that although the process is, in essence, voluntary, certain cases involving serious injuries warrant the submission, or at the very least preparation of an LMSA. 86 It can be argued that Section 111 of the MMSEA maintains that failure of an attorney to use this reporting tool as mandated may result in burdensome penalties of $1,000 per day per claim, which is likely sufficient incentive for attorneys to prepare an MSA in liability cases. 87 Thus, those who are in favor of the use of MSA funds in liability settlements seem to believe that LMSAs can be inferred as necessary from current law, or at least necessary out of mere caution alone. Conclusion At this point, attorneys handling liability cases involving Medicare beneficiaries are unsure how to best construct a LMSA as a result of a lack of legal guidance. Until CMS releases instructive policy memoranda on how to adequately consider Medicare s interest in liability settlements, attorneys handling these cases will likely turn to workers compensation settlement guidelines for assistance. There also remains a large cloud of uncertainty regarding when attorneys should establish a MSA fund in liability cases. It appears that the current regulations only apply to workers compensation settlements, not to liability settlements. There still remains 6 The Health Lawyer Volume 26, Number 1, October 2013

7 the uneasy paradigm of whether or not a MSA fund should be instituted for liability cases on caution alone. Should liability attorneys ignore the memoranda issued by CMS on the grounds that they are not binding law, or should they err on the side of caution in order to prevent any issues with CMS and possible Medicare liens on settlements? It is possible that this issue is already being contemplated by CMS, which will hopefully lead to concrete rulemaking that not only ends the question of whether or not a LMSA fund is necessary, but also provides guidelines regarding how a LMSA fund should be structured. Although Section 111 of the MMSEA has relieved some uncertainty regarding the MSP Act s application to liability cases, CMS has not yet set out guidelines for complying with all of the expanded requirements of the MMSEA when settling liability claims. Until the industry is provided with more guidance, attorneys will need to proceed with caution and hope that by following workers compensation MSA guidelines they will be not be hit with fines or Medicare liens on settlements. William Penn Morrow was born and raised in Opelousas, LA, attended Louisiana State University and graduated with a Bachelor of General Studies in Influenced by his family, especially his parents, Stephen and Kimberly Morrow, who are both attorneys, William enrolled at Southern University Law Center, where he earned his J.D. in May of Mr. Morrow began clerking for the Honorable Donald Hebert at the 27th Judicial District in Opelousas, LA in August He may be reached at Volume 26, Number 1, October 2013 Endnotes 1 Social Security Amendments of 1965, Pub. L. no , 79 Stat. 286, (1965). 2 The Different Parts of Medicare, The Official U.S. Government Site for Medicare (2013), 3 Id. 4 Medicare Eligibility Guidelines, Social Security Administration, SSA Pub. No (June 2011), html#a0=2. 5 How You Earn Credits, The Official Website of the U.S. Social Security Administration (2013), 6 Medicare Enrollment Using Our Online Application, The Official Website of the U.S. Social Security Administration (2013), www. ssa.gov/medicareonly. 7 CMS Leadership, Centers for Medicare & Medicaid Services (2013), About-CMS/leadership. 8 How is Medicare Funded?, The Official U.S. Government Site for Medicare (2013), www. medicare.gov/about-us/how-medicare-isfunded/medicare-funding.html. 9 Sean M. Novak, How to Create and Maintain a Medicare Set-Aside Trust, 35-MAR L.A. Law. 15, 15 (2012) (explaining Medicare). 10 Omnibus Reconciliation Act of 1980, Pub. L. no , 953, 94 Stat (1980). Mr. Morrow s paper was chosen as a runner up in the ABA Health Law Section s Student Writing Competition. We would like to thank the judges for this year s competition: Lauren D. Goldberg, Garfunkel Wild, PC, Hackensack, NJ (Chair) John D. Blum, Loyola University, Chicago School of Law, Chicago, IL Lisa L. Dahm, South Texas College of Law, Houston, TX Marla Durben Hirsch, Editor, The Health Lawyer, Potomac, MD Kari Loeser, Genentech, Inc., South San Francisco, CA Robert R. Nelson, Avera Health, Sioux Falls, SD Robert L. Schwartz, University of New Mexico School of Law, Albuquerque, NM Charity Scott, Georgia State Univesity College of Law, Atlanta, GA The writing competition is open to all current law students. Contact Wanda Workman at americanbar.org for information on the competition. The Health Lawyer 11 Medicare Secondary Payer & You, Centers for Medicare & Medicaid Services (March 5, 2012), index.html?redirect=/medicaresecondpayer andyou. 12 Novak, supra note 9, at U.S.C. 1395w-101 (2012). 14 Medicare Modernization Act Final Guidelines, Centers for Medicare & Medicaid Services (2013), Drug-Coverage/PrescriptionDrugCovContra/ downloads/formularyguidance.pdf. 15 How Medicare Prescription Drug Coverage Works with a Medicare Advantage Plan or Medicare Cost Plan, The Official U.S. Government Site for Medicare (April 2013), 16 Medicare, Medicaid, and SCHIP Extension Act of 2007, Pub. L. no , 121 Stat (2007). 17 Mandatory Insurer Reporting, Centers for Medicare & Medicaid Services (April 4, 2013), redirect=/mandatoryinsrep. 18 Id. 19 Fareed Zakaria, Fixing the Deficit: Our Biggest Test, Time Magazine, Nov. 18, 2010, available at 0,9171, ,00.html. 20 Daniel Levinston, Surety Bonds Remain an Underutilized Tool to Protect Medicare From Supplier Overpayments, U.S. Department of Health and Human Services (March 2013), https://oig.hhs.gov/oei/reports/oei pdf Annual Report of the Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds, The Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds (April 23, 2012), economic-policy/ss-medicare/documents/ TR_2012_Medicare.pdf, at Id. at Id. at Medicare Now and in the Future, Kaiser Family Foundation (Oct. 2008), upload/7821.pdf. 25 Supra note 21, at Workers Compensation Medicare Set Aside Arrangements, Centers for Medicare & Medicaid Services (April 18, 2013), www. cms.gov/medicare/coordination-of-benefits/ Workers-Compensation-Medicare-Set-Aside- Arrangements/WCMSAP-Overview.html. 27 Medicare Secondary Payer Liability Insurance (Including Self-Insurance) Settlements, Judgments, Awards, or Other Payments and Future Medical, Centers for Medicare & Medicaid Services (Sept. 30, 2011), gov/medicare/coordination-of-benefits/ COBGeneralInformation/downloads/Future Medicals.pdf U.S.C. 1395y(b)(2)(A)-(B) (2012). continued on page 8 7

8 The Elephant in the Room continued from page 7 29 Workers Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, Centers for Medicare & Medicaid Services (March 29, 2013), Coordination-of-Benefits/Workers CompAgencyServices/Downloads/ March WCMSA-Reference- Guide-Version-13.pdf. 30 Id. 31 Id. 32 Id. 33 Repayment Mechanism Arrangements Guidance, Centers for Medicare & Medicaid Services (Jan. 7, 2013), Fee-for-Service-Payment/sharedsavings program/downloads/repayment-mechanism- Guidance.pdf U.S.C. 1395y(b)(2)(B)(ii) (2012) C.F.R , (c) (2012) C.F.R (b) (2012) U.S.C. 1395y(b)(2)(B)(i) (2012). 38 Medicare Secondary Payer (MSP) Manual, Centers for Medicare & Medicaid Services (Aug. 3, 2012), msp105c03.pdf. 39 See generally 42 C.F.R (d)(2) (2012) U.S.C. 1395y(b)(2)(B) (2012). 41 Supra note MLN Matters, Centers for Medicare & Medicaid Services (Aug. 3, 2012), gov/outreach-and-education/medicare- Learning-Network-MLN/MLNMatters Articles/downloads/MM7355.pdf. 43 Medicare Secondary Payer Manual Centers for Medicare & Medicaid Services (Aug. 3, 2012), Guidance/Guidance/Manuals/downloads/ msp105c01.pdf. 44 MLN Matters, Centers for Medicare & Medicaid Services (July 29, 2011), gov/research-statistics-data-and-systems/ Monitoring-Programs/recovery-auditprogram/downloads/MLNMattersArticle.pdf U.S.C. 1395y(b)(2) (2012). 46 Supra note Kirsten A. Lerch et al., Survey of New York Law, 62 Syracuse L. Rev. 685, 704 (2012) (discussing how attorneys struggle with Liability Medicare Set-Aside Arrangements). 48 Eli A. Poliakoff et al., Medicare Muscles Up: Complying With Medicare Section 111 Mandatory Reporting, 861 PLI/Lit 527, 529 (2011) (shedding light on the purpose of Section 111 reporting) U.S.C. 1395y(b)(7) & (8). 50 Supra note U.S.C. 1395y(b)(2) (2012). 52 Medicare Secondary Payer Manual Centers for Medicare & Medicaid Services (March 20, 2009), Guidance/Guidance/Manuals/downloads/ msp105c02.pdf. 53 Workers Compensation Medicare Set-Aside Arrangement Reference Guide, Centers for Medicare & Medicaid Services (March 29, 2013), Downloads/March WCMSA- Reference-Guide-Version-13.pdf. 54 Id. 55 Id. 56 Id C.F.R (2012). 58 Id. 59 Supra note Id. 61 Id. 62 Id. 63 Supra note Id. 65 Id. 66 Id. 67 Id. 68 Medicare Secondary Payer and Future Medicals, 77 Fed. Reg (June 15, 2012), https://www.federalregister.gov/articles/ 2012/06/15/ /medicare-programmedicare-secondary-payer-and-futuremedicals. 69 Id. 70 Id. 71 American Association for Justice, Medicare Issues Proposed MSP Rulemaking, 48-OCT JTLATRIAL 55 (2012) (informing attorneys of possible future CMS rulemaking that may alter the MSP Act and address the issue of future medicals). 72 Id. at Daniel J. Santaniello et al., Medicare Reporting, Resolving Conditional Payments and Taking Medicare s Interest Into Account for Future Payments, 30 No. 4 Trial Advoc. Q. 5, 11 (2011) (explaining the history, procedure, and future of Medicare) C.F.R (2012). 75 Supra note U.S.C. 1395hh(a)(2) (2012). 77 Resolution, American Bar Association (Feb. 14, 2011), dam/aba/directories/policy/2011_my_108a. authcheckdam.pdf. 78 Norma S. Schmidt, Note, The King Kong Contingent: Should the Medicare Secondary Payer Statute Reach to Future Medical Expenses in Personal Injury Settlements?, 68 U. Pitt. L. Rev. 469, 479 (2006) (arguing reasons against MSAs in liability settlements). 79 Lerch, supra note 47, at Id. at C.F.R (b)(2) (2012). 82 Schmidt, supra note 78, at U.S.C. 1395y(b)(2)(A) (2012). 84 Santaniello, supra note 2, at U.S.C. 1395y(b)(2)(A) (2012). 86 Santaniello, supra note 2, at Supra note 16. The articles published in The Health Lawyer reflect the opinions of the authors. We welcome articles with differing points of view. 8 The Health Lawyer Volume 26, Number 1, October 2013

9 Chair s Corner continued from page 2 still a health lawyer, and did I still belong in the Health Law Section? Given that most of the people I see are seeking help because of life-changing health problems, the answer was obvious. I am a health lawyer, and the Health Law Section is where I belong because it provides me with the tools and support I need to succeed in my career and offers insight into the health law issues and challenges facing each of us. Earlier this summer, after attending the Physicians Legal Issues Conference in Chicago, I accompanied then- Section Chair David Douglass to a meeting with the ABA Board of Governors. The Board meets periodically with individual section leaders, and it was Health Law s turn. We shared with the Board several of our Section s accomplishments and brought to its attention some of our ongoing challenges. David led off his remarks to the Board with the comment that, no matter what your area of legal expertise, at some point we are all health lawyers. He was right. You may not make a living analyzing the tax implications of ambulatory surgery center joint ventures or delving into healthcare fraud settlements. But chances are good that at some point some part of your practice will confront a health law question; if not at work, then probably at the dinner table as you try to guide your young adult children through the process of choosing a health insurance provider, or as you assist your parents and/or grandparents as they attempt to navigate through the world of Medicare and prescription drug coverage. Even those of us who consider ourselves to be health lawyers are often stymied by questions we are unable to answer. Indeed, you may spend your days deep in the weeds of Stark and Anti-Kickback provisions only to be brought up short when a relative develops a serious health problem, is suddenly without healthcare coverage and needs to understand the intricacies of The Consolidated Omnibus Budget Reconciliation Act ( COBRA ), or is grappling with breast cancer and has questions concerning her employment rights. Whether we specialize in it, or stumble across it, we are all confronted with legal questions regularly that come under the giant umbrella known as health law. Where do you look for answers to your health law questions? Your answer should be the Health Law Section of the ABA. In July, we held a Section-wide leadership/business meeting in Denver. For the first time we were able to bring our Council members, officers, and staff together with the continued on page 20 Volume 26, Number 1, October 2013 The Health Lawyer 9

10 WHO YOU GONNA CALL? COMPETING/ COORDINATING ROLES OF THE MEDICAL STAFF ATTORNEY AND THE HOSPITAL ATTORNEY Elizabeth A. Snelson, Esq. Legal Counsel for the Medical Staff PLLC Saint Paul, MN A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient. 1 As hospital medical staffs fulfill their duties in patient care and safety, they routinely encounter legal issues, ranging from due process to antitrust concerns to regulatory compliance. To whom should the medical staff turn for legal advice? Can the hospital s attorney ethically counsel the medical staff? What if the medical staff has an attorney? This article addresses the medical staff organization s legal status, and the competing/ coordinating roles of the hospital attorney and medical staff attorney. Whether medical staffs have legal capacity to hire their own attorneys separate and apart from the hospital s in-house or outside counsel is a novel question for some attorneys and executives in the hospital industry and even for some physicians. Just how separate is a medical staff from its hospital, if it is separate at all? Is the medical staff sufficiently separate to enter into an attorney-client relationship? Case Law on Standing to Sue and Be Sued In order to defeat medical staffs causes of action in litigation, hospitals have argued that the medical staff is not a legal entity with standing to sue and be sued. This argument has met with mixed success. For example, in the well-publicized case of Exeter Hosp. Med. Staff v. Bd. of Tr. of Exeter Health Resources, Inc., 2 the court held that the medical staff was not a legal entity. Citing Ramey v. Hosp. Auth. Of Habersham County, 3 and quoting Johnson v. Misericordia Cmty. Hosp., 4 the court wrote: The medical staff has no legal life of its own and is merely one component of the hospital corporation. This in no way denigrates the role, which the staff plays in the modern hospital. It is, in fact, the single most important department in the hospital. But the fact that it is a department means that the staff cannot sue or be sued as a body. A competing line of cases finds that the medical staff has standing as a legal entity, typically identifying the medical staff as an unincorporated association, which can sue and be sued as such. 5 In its more recent decision, the California court in Hongsathavij v. Queen of Angels/ Hollywood Pres. Med Ctr described the medical staff not only as an unincorporated association, but as a legal entity which is required to be self-governing and independently responsible from the hospital for its own duties and for policing its member physicians. 6 Requirement for Bylaws Bylaws are a hallmark of independent organizations. 7 Medical staffs, like hospitals, but unlike any particular subdivision of a hospital, are required by a variety of authorities to have bylaws. Medicare Conditions of Participation 8 mandate that the medical staff adopt and enforce bylaws to carry out its responsibilities and specify that the bylaws must: 1) Be approved by the governing body. 2) Include a statement of the duties and privileges of each category of medical staff (e.g., active, courtesy, etc.). 3) Describe the organization of the medical staff. 4) Describe the qualifications to be met by a candidate in order for the medical staff to recommend that the candidate be appointed by the governing body. 5) Include a requirement that a physical examination and medical history be done no more than seven days before or 48 hours after an admission for each patient by a doctor of medicine or osteopathy, or, for patients admitted only for oromaxillofacial surgery, by an oromaxillofacial surgeon who has been granted such privileges by the medical staff in accordance with state law. 6) Include criteria for determining the privileges to be granted to individual practitioners and a procedure for applying the criteria to individuals requesting privileges. 9 The Joint Commission, the national hospital accreditation service which dominates the accreditation market and essentially determines Medicare status, expands upon Medicare requirements for medical staff bylaws in its standards and their Elements of Performance, by which compliance with the standards is measured. Joint Commission standard MS Element of Performance 2 provides: The organized medical staff adopts and amends medical staff bylaws. Adoption or amendment of medical staff bylaws cannot be delegated. After adoption or amendment by the organized medical staff, the proposed bylaws are submitted to the governing 10 The Health Lawyer Volume 26, Number 1, October 2013

11 body for action. Bylaws become effective only upon governing body approval. 10 Twelve other Elements of Performance under MS detail medical staff bylaws content. 11 Further, state law typically requires that hospital medical staffs have bylaws. For example, under Pennsylvania state law, [t]he medical staff shall develop and adopt, subject to the approval of the governing body, a set of bylaws, rules and regulations. 12 Note that in determining that the medical staff was not a separate entity, the court in Exeter noted: Although the medical staff develops and adopts bylaws, rules and regulations, it is required to submit them to the governing body for approval, and the governing body reserves the right to unilaterally adopt or amend them as necessary. 13 Federal law does not authorize governing bodies to unilaterally change medical staff bylaws, nor generally do state statutes. Further, under Joint Commission Standard MS , [n]either the organized medical staff nor the governing body may unilaterally amend the medical staff bylaws or rules and regulations. Granting the board medical staff bylaws amendment authority clashes with that long-standing Joint Commission standard. Had the Exeter Medical Staff Bylaws not been subject to unilateral amendment, and followed the intent of the Joint Commission standard instead, the court may not have discounted the bylaws as indicia of legal status. That medical staffs have bylaws supports identifying the medical staff as a legal entity. Governance Requirements Medical staffs are required to be self-governing under Joint Commission standards and some states laws to assure that clinicians observe and review clinicians without outside interference. Specifically, Joint Commission Standard LD , Volume 26, Number 1, October 2013 Element of Performance 1 states that the hospital has an organized, selfgoverning medical staff. Element of Performance 2 for this Standard states the organized medical staff is self-governing. Refer to the bulleted list describing self governance in the Overview to the Medical Staff Chapter, below in its entirety: Self-governance of the organized medical staff includes the following and is located in the medical staff s bylaws: Initiating, developing, and approving medical staff bylaws and rules and regulations; Approving or disapproving amendments to the medical staff bylaws and rules and regulations; Selecting and removing medical staff officers; Determining the mechanism for establishing and enforcing criteria and standards for medical staff membership; Determining the mechanism for establishing and enforcing criteria for delegating oversight responsibilities to practitioners with independent privileges; Determining the mechanism for establishing and maintaining patient care standards and credentialing and delineation of clinical privileges. 14 Some states laws also address medical staff self-governance. For example, Georgia law states: [t]he medical staff of the hospital shall adopt and enforce bylaws and rules and regulations which provide for the self-governance of medical staff activities and accountability to the governing body for the quality of care provided to all patients. 15 Due to the threat to professionalism and clinical integrity raised by manipulation of medical staff decision-making processes, California defines practicing in a hospital on a medical staff of five or more that is not self-governing as unprofessional conduct for physicians. 16 The Health Lawyer Self-governance is a characterization of an autonomous entity. Of course, questions and certainly disputes about governance warrant legal counsel. State Statutes and Separate Counsel The issue of whether the medical staff can be represented by separate counsel has been obviated in some states by statute. For example, California law 17 defines the medical staff s right of self-governance as including the ability to retain and be represented by independent legal counsel at the expense of the medical staff. 18 Legal Issues Faced By a Medical Staff Organization Warranting Separate Counsel The hospital and medical staff share common goals that are routinely met by collaboration. However, there is no shortage of issues common to all hospitals in all states in which the interests of the medical staff and its members will divert from those of the hospital board and management and where having separate counsel may be appropriate. Peer Review Peer review presents a range of issues that warrant legal counsel. 19 Routine focused and ongoing peer review procedures should be reviewed by hospital and medical staff to assure that legal and accreditation requirements are met in the design of the process; medical staff counsel will bring the unique perspective of assuring that the medical staff retains control of its process rather than ceding responsibility for review to non-clinicians. Of paramount importance is the assurance that due process is provided, protecting not only the respondent medical staff member against bias, but also the outcome of the process against charges of unfairness. continued on page 12 11

12 Who You Gonna Call? continued from page 11 A newly-adopted Arkansas statute 20 provides that the medical staff can, as a matter of law, [e]ngage independent legal counsel to review a professional review action before a final recommendation is made or final action is taken. This vanguard codification could prove helpful against hospital efforts to block separate medical staff representation or even involvement to protect the medical staff s interest in the fairness of peer review processes in which its members can defend themselves against unwarranted charges. Hearing and Appeals Procedures Should the medical staff hearing process be initiated, separate interests become apparent. In a typical process, the Medical Executive Committee ( MEC ) 21 recommends a peer review action, and if the respondent medical staff member requests a hearing, presents the adverse action to a hearing panel composed of medical staff members. A hearing officer may be appointed to preside over the process and advise the hearing committee. The hearing committee s decision can be appealed, typically to a committee comprised of hospital board members, which either makes the final decision or a recommendation to the Board for final action. Hospital counsel representing the Medical Executive Committee at the hearing, advising the hearing panel and the appeal panel, all in the same matter, is not unprecedented. For instance, under Arkansas Code , equitable relief may be available to the respondent physician where interests cross: (2)(A) If the attorney representing or advising a professional review body is employed by the hospital or from a firm regularly utilized by the hospital, the physician may request that the peer review body use an attorney not employed by the hospital or from a firm regularly utilized by the hospital. (B) If the peer review body declines to do so, and if review is had under , the court shall consider the impact of this decision, if any, in determining whether to grant equitable relief. Challenges to counsels participation and jurisprudence on the matter are rare. Note however, in Yaqub v Salinas Mem l Healthcare Sys., 122 Cal App. 4th 474 (Cal. Ct. App. 2004), the court s caution, however, that if an appellate review hearing does take place without counsel for either side, it would strain the bounds of due process to allow the hospital s attorney, who took an active role in assisting the MEC to bring charges against appellant, to serve as advisor to the board in the hearing. Credentialing and Privileging Credentialing and privileging functions can also present opportunities for medical staff and hospital differences to surface. Hospital recruitment of physicians, for employment or otherwise, can lead to conflict with standards set by the medical staff, or competition with standing medical staff members, which surface as the medical staff processes applications and evaluates applicants. In jurisdictions recognizing negligent credentialing as a cause of action (Massachusetts most recently, in Rabelo v. Nasif and Milford Regional Hospital), 22 the hospital s interest in defending itself against negligence claims can conflict with the medical staff s interest in protecting the confidentiality of its peer review processes. Medical Staff Bylaws Under Islami v. Covenant Medical Center, Inc., 23 the court identified as the majority view the position that medical staff bylaws are construed as a contract between the hospital and the medical staff. Even in those jurisdictions where the bylaws are not contractual in nature, (see Munoz v. Flower Hospital) 24 the hospital and medical staff interests may well be distinct on such issues as whether full hearing processes should be in the bylaws, thus permitting all active members to vote on their rights, or in rules and regulations on which only MEC committee members can act. Recognizing the medical staff s interest in the content of its bylaws, Arkansas law states, [t]he General Assembly encourages medical staffs to obtain independent counsel to review medical staff bylaws to ensure that they contain provisions that comply with this subchapter. 25 In at least these four areas, medical staffs should assure that their interests are protected by hiring counsel separate from that of the hospitals. Application of Ethics Rules Even where statutes and case law are silent on the question of separate counsel, ethical rules must be considered in the handling of medical staff legal issues. Ethics rules provide helpful guidance, particularly in the majority of jurisdictions which have not addressed the varying issues. All references are to the American Bar Association Model Rules of Professional Conduct ( ABA Model Rules ). 26 Generally, where instances of potential conflict of interest arise, Rule 1.7 Conflict Of Interest: General Rule comes into play: A) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: 1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and 2) each client consents after consultation. B) A lawyer shall not represent a client if the representation of that 12 The Health Lawyer Volume 26, Number 1, October 2013

13 client may be materially limited by the lawyer s responsibilities to another client or to a third person, or by the lawyer s own interest, unless: 1) the lawyer reasonably believes the representation will not be adversely affected; and 2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation will include explanation of the implications of the common representation and the advantages and risks involved. In light of these rules, hospital counsel has to consider the ethics of purporting to simultaneously represent the medical staff that has not retained its own counsel, and of advising the medical staff that has retained its own counsel. Medical Staff Not Represented by Separate Counsel As discussed above, the potential for conflicts in hospital and medical staff interests ranges from medical staff bylaws to everyday credentialing. Even where the medical staff is arguably merely a constituent of the hospital organization, disclosure of the conflict by the hospital attorney may be warranted. Consider ABA Model Rule 1.13, comment 10: There are times when the organization s interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot Volume 26, Number 1, October 2013 provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged. 27 Disclosure by hospital counsel to the medical staff in such conflicts, such as would be the case in the examples provided above, may be warranted. Medical Staff Represented By Separate Counsel If the medical staff has retained its own counsel, consideration must be given to the ethics of direct communication with the medical staff. Consider ABA Model Rule 4.2, Communication With Person Represented By Counsel : In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Comment 4 to this Rule is helpful in identifying that representation may be limited to certain matters: This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). The Health Lawyer Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Thus, if the medical staff has retained counsel solely for purposes of medical staff bylaws revisions (where as parties considering amending their contract, each should have its own lawyer,) hospital counsel may nonetheless communicate with the medical staff leadership regarding a different matter where hospital and medical staff interests align. Sample Medical Staff Bylaws Since it is probable that at some point the medical staff may need separate counsel, medical staff bylaws 28 should address the issue of medical staff legal counsel. The Massachusetts Medical Society Model Medical Staff Bylaws Article IX J. states: The medical staff delegates to the medical executive committee the following duties: Engage legal counsel independent of the hospital to represent the medical staff. 29 The North Carolina Medical Society Model Medical Staff Bylaws section I.C8.b12 provides: The medical executive committee oversees the Medical Staff accounts and, when appropriate, votes to disperse funds for Medical Staff activities, including for services rendered to the Medical Staff by legal counsel and by other independent professional assistance retained by the Medical Executive Committee to protect and promote the interests of the Medical Staff. 30 continued on page 14 13

14 Who You Gonna Call? continued from page 13 Sample Engagement Agreement For Medical Staff Counsel Medical staff engagement of counsel warrants a written agreement. The following sample addresses basic understandings: ENGAGEMENT AGREEMENT This engagement agreement is effective as of the date signed by the medical staff representative for Medical Staff. 1. Scope. The Medical Staff hereby engages [counsel] To review and propose revisions to the following Medical Staff documents: Medical Staff Bylaws Rules and Regulations Allied Health Professional Manual Peer Review Policy Code of Conduct To provide legal counsel during the hearing and appeal process for Dr. To provide general legal advice. 2. Fees. The Medical Staff agrees to pay [counsel] at the rate of $XXX per hour for the time spent reviewing the documents, conducting any necessary research and preparing revisions. 3. Billings. Any consultation or services fees and costs will be billed monthly. Payment of Counsel s invoice is due upon receipt by the medical staff representative. Invoices will be sent to the address listed under the signature of the medical staff representative, below. Payment will be sent to: SAMPLE [Counsel] Street City State Zip 4. No Assignment. This agreement shall not be assigned by either party for any reason whatsoever without the consent in writing of the other party. 5. Termination. This agreement may be terminated at any time by either party. The Medical Staff shall have the right at any time in its best judgment, with or without reason, to terminate this agreement, and to obtain new attorneys at law, or take such other steps as the Medical Staff deems proper. [counsel] may hereafter deem it necessary or advisable for personal or other reasons to withdraw as attorneys for the Medical Staff or to request the Medical Staff to substitute other attorneys in a particular matter, proceeding, negotiation or other situation. In such event [counsel] shall have full right and authority to so withdraw or request substitution. In the event that this agreement is terminated, the Medical Staff shall pay to [counsel] the rates, fees and charges existing at the time of termination. Date Date By Medical Staff By: Doctor Name Its: President [counsel] By: Lawyer Name 14 The Health Lawyer Volume 26, Number 1, October 2013

15 Conclusion As hospital counsel and medical staff counsel owe the same duties to their respective clients, so must they abide by the same rules governing the profession in carrying out those duties. Long-standing rules requiring disclosure and prevention of conflicts of interest, and avoidance of improper communication with represented clients apply to hospital and medical staff counsel. Elizabeth A. Snelson, Legal Counsel for the Medical Staff PLLC, is in solo practice in St. Paul, Minnesota and is of counsel to Lockridge Grindal Nauen in Minneapolis. She represents medical staff organizations. A frequent speaker on medical staff legal issues, Ms. Snelson has participated in programs sponsored by the American Medical Association ( AMA ) and various national specialty societies and state medical associations, the American Bar Association, and other organizations. Ms. Snelson is a past president of the American Society of Medical Association Counsel and served on the Joint Commission MS Task Force. She is the author of Credentialing and Medical Staff Law, published by the NAMSS Institute; The Physicians Guide to Medical Staff Organization Bylaws, published by the AMA; and several model medical staff bylaws published by state medical societies. A more complete listing of Ms. Snelson s publications and presentations is available at where she blogs at BYLAWG. She can be reached at Endnotes 1 Council on Ethical and Judicial Affairs. Code of Medical Ethics Current Opinions, Edition Chicago: American Medical Association A. 2d 53 (N.H.2002) S.E.2d 797 (Ga. Ct. App. 1995), cert. denied (1996) N.W. 2d 156 (Wis. 1981). 5 See e.g., Corleto v. Shore Memorial Hospital, 350 A.2d 534, 539 (N.J. Super. Ct. Law Div. 1975); St. John s Hosp. M. S. v. St. John Reg. M. C., 245 N.W.2d 472, 474 (S.D. 1976); Anton v San Antonio Community Hosp. (1977) 19 Cal. 3d 802, 140 Cal. Rptr 442 (albeit organized under the auspices of the hospital s board of directors ) 19 Cal. 3d 802, Cal. App.4th 1123, 73 Cal. Rptr 2d 695 (1998). 7 See generally, Robert s Rules of Order Newly Revised, 11th ed. (Da Capo Press, 2011) C.F.R (c). These federal requirements must be met for the hospital to qualify to provide services to Medicare beneficiaries, and to be compensated accordingly. 9 Id. 10 The Joint Commission, Comprehensive Accreditation Manual for Hospitals (2013). 11 Id Pa. Code A.2d 53, 55. (NH 2002). 14 The Joint Commission, Comprehensive Accreditation Manual for Hospitals (2013). 15 Georgia Regulations (c) C.C.R (f), 70703(b). 17 California Business and Professions Code (a)(5). 18 See also Arkansas Code (h). 19 Discussion of the right to counsel for the individual subject of peer review, as called for under the Health Care Quality Improvement Act, c.(3)(d)(i), is beyond the scope of this article. 20 Arkansas Code (h). 21 Joint Commission standard MS requires a medical staff executive committee; as explained in the Rationale section: The organized medical staff delegates authority in accordance with law and regulation to the medical staff executive committee to carry out medical staff responsibilities. The medical staff executive committee carries out its work within the context of the organization functions of governance, leadership, and performance improvement. The medical staff executive committee has the primary authority for activities related to self governance of the medical staff and for performance improvement of the professional services provided by licensed independent practitioners and other practitioners privileged through the medical staff process. 22 Worcester Superior Court Civil Action No (2013) F. Supp. 1361,1370 (N.D. Iowa 1992) Ohio App.3d 162, 507 N.E.2d 360 (1985). 25 Arkansas Code (5). 26 Available at professional_responsibility/publications/ model_rules_of_professional_conduct/model_ rules_of_professional_conduct_table_of_ contents.html. 27 Available at professional_responsibility/publications/ model_rules_of_professional_conduct/rule_ 1_13_organization_as_client.html. 28 Model medical staff bylaws can be useful to attorneys crafting bylaws for their medical staff and hospital clients. Some but not all state medical societies publish model bylaws, so that while state-specific models are most helpful, where none is available, models from other states may prove useful, subject to tailoring to any requirements in the client s state. State medical society models are educational in nature; compliance with a model is not mandated. 29 Available at 30 Available at REMINDER: ABA Health Law Section members can access past issues of The Health Lawyer on the Section s website. To access back issues and The Health Lawyer s full index, go to Volume 26, Number 1, October 2013 The Health Lawyer 15

16 5 or more users 5 or more users 5 or more users 16 The Health Lawyer Volume 26, Number 1, October 2013

17 ABA HEALTH LAW SECTION 321 N. Clark Street, MS 18.1 Chicago, Illinois (312) FAX: (312) September 27, 2013 Re: State of the ABA Health Law Section Dear Health Law Section Member: We have come to the close of the bar year and I have had the wonderful opportunity and rewarding challenge to serve as the Chair of the ABA Health Law Section ( HLS or the Section ) during this time. As you know, there have been many major changes in health law during the past year. Additionally, the country as a whole is enduring ongoing economic challenges and the ABA has not been spared. Nevertheless, as a Section, we have worked to continue to meet your needs and fulfill our Mission Statement: The ABA Health Law Section is dedicated to enhancing the practice of health lawyers and improving the understanding and development of health laws. Towards this end, the Section seeks to be an effective leader in the profession and within the ABA while serving the needs of its members. It is important to us that you feel you are receiving the very best value for your investment in the Section. We want the Section to be the one constant in your professional life regardless of where your career takes you. Accordingly, I would like to take this opportunity to summarize for you some of the primary activities that the Section has undertaken this past year on your behalf. Health Law Reform Educational Opportunities The Section s live conferences, webinars, teleconferences, and publications all featured many topics and materials designed to help educate our members on the growing body of laws and regulations related to healthcare reform, from a webinar on the new HITECH Omnibus Rules held shortly after its publication, to studying and submitting comments on proposed regulations. The Health Lawyer and Health esource published articles on various aspects of healthcare reform. All live programs included key panels on healthcare reform and presentations by key government officials, such as Ted Doolittle, Mark McClellan, Leon Rodriguez, and David Wiseman at the Washington Health Law Summit, former Congressman Patrick Kennedy, Gregory Demske, and Joshua Eizen at our Emerging Issues Conference and Gregory Demske, Martha Talley, and Stephen Ondra at Physicians Legal Issues conference. For more information, go to Interactions with Government Officials Section members started the year by submitting comments to the Department of Health and Human Services ( HHS ) on the OIG s Provider Self-Disclosure Protocol. The Section, jointly with the ABA s Tax Section, also provided comments to the Internal Revenue Service on Accountable Care Organizations. These comments are available on the Section s website at At the Annual Meeting the Section membership approved a Bylaw Change that creates an official government attorney position on the Section s Council, demonstrating the importance your Section leaders place on interaction with the Government Agencies. Interest Groups ( IGs ) and Task Forces Expand their Activities One of the greatest values that the Section offers its members is the opportunity to join up to three IGs for free. There are also several Task Forces that members can join. The Medical Research, Biotechnology and Clinical Ethical Issues IG became the Life Sciences IG to better reflect its activities. Most of the IGs expanded their programs by hosting special sessions at the Washington Healthcare Summit and/ or Emerging Issues Conference. Several IGs offered free webinars or podcasts and other resources for their members. For instance, the Long Term Care Task Force developed a podcast on Fraud and Abuse Hot Spots for Long-Term Care Providers; the ehealth, Privacy and Security IG created an Omnibus HIPAA Rules redline that is an exclusive member benefit, as well as numerous resources on the HITECH act, including a focus on Business Associates Contracts. The Physician Issues IG presented a podcast on the What and Why of the Sunshine Act. The IG also hosted a webinar in conjunction with the American continued on page 18 Volume 26, Number 1, October 2013 The Health Lawyer 17

18 Re: State of the ABA Health Law Section Letter continued from page 17 Medical Association on Principles for Physician Employment. These and many more are available on the Section s website in the Resource Section. A special thank you to the IG and Task Force leaders for all of their efforts this year to expand IG membership and programs. Membership Advances I am extremely pleased to report that in contrast to most of the other ABA sections, our membership numbers continue to increase. The Membership Committee set a goal of 1,000 new members. Intense outreach to law firms with a health law practice resulted in almost reaching that goal. The Section produced a member benefit guide, putting our resources and benefits all in one place for you. This allowed you to join IGs and order past webinar and conference material or books from one convenient place. We also have continued our outreach to law students through two career-focused podcasts on careers in health law to provide students with suggestions and strategies to enhance their job prospects in this very difficult job market. The Annual Law Student Writing Competition had 18 entrants this year that produced many papers of publishable quality. The winning entry, Lost in the Gray: Navigating the Problem of Pharmaceuticals in the Gray Market was submitted by Brittany Mahugh, a recent graduate from the University of Oregon School of Law, Eugene, Oregon and was published in The Health Lawyer. Section efforts to be more inclusive continue at our live programs. At the Washington Health Law Summit, the Emerging Issues Conference and the Physician Legal Issues Conference, presentations were made on diversity issues affecting the field of health law. The Section also signed on to the ABA Commission on Disability Rights Pledge affirming our commitment to diversity, including diversity in regard to individuals with mental, physical, and sensatory disabilities in the legal profession. The Section made a three-year pledge to the ABA s Legal Opportunity Scholarship Fund that provides scholarships to law students to enhance diverse enrollment in law schools. Enhanced Collaboration within the ABA The Section s Health Law and Policy Coordinating Committee was very active this year and assessed numerous Resolutions and Reports scheduled to come before the ABA House of Delegates ( HOD ) to ensure that the views of the Health Law Section were represented. Resolutions adopted by the House become ABA Policy, which is then lobbied before Congress. The ABA s voice, as the largest professional organization of lawyers, is credible and powerful. The Section presented a HOD Resolution on Veterans and Parity in insurance that was co-sponsored by several other ABA entities and became ABA Policy at the Annual Meeting. The Section also collaborated with and cosponsored a Resolution on the Medicare Secondary Payer Act. Throughout the year, the Section is often approached by other ABA entities to cosponsor webinars that are health law related. If accepted, it means that you, as members of the Health Law Section, will receive the member rate of the other ABA entity. Ongoing Section Activities Programs In addition to the various new initiatives undertaken this year, the Section continued its efforts to provide resources and training that enhance your practice. One of the ways we achieve this goal is by making focused, targeted webinars and in-depth live conferences available. (Program materials from the live conferences are available for purchase through the Section s website: Emerging Issues Conference: The 14th Annual Emerging Issues in Healthcare Law Conference was one of the highest attended EMI conferences in our Section s history. There were a number of outstanding plenary and breakout sessions, and networking opportunities and events specifically designed for law students and young lawyers. If you missed the opportunity to attend, materials are available at bar.org/abastore/index.cfm?section=main&fm=product.add ToCart&pid= PDF. The Section will gather in Phoenix, AZ, for the next conference on February 26 March 1, Washington Health Law Summit: The 10th Annual Washington Health Law Summit was an outstanding conference. This program always features top government speakers and private practitioners. Conference attendees heard from key Congressional staffers as well as senior agency officials including those in the Center for Program Integrity, the Federal Trade Commission, the Department of Justice Office of Civil Rights, and the Centers for Medicare & Medicaid Services, as well as prominent academics. If you missed the opportunity to attend, materials are available at https:// apps.americanbar.org/abastore/index.cfm?fm=product.add ToCart&pid= PDF. The 2013 Washington Health Law Summit will be held at the Ritz Carlton, Washington, DC on December 9-10, Physician Legal Issues: The Section s Annual Physicians-Legal Issues Conference was two days of CLE sessions held at the Radisson Blu in Chicago. For the second year, the Section partnered with the Chicago Medical Society in presenting this program. The last session of the conference was also co-sponsored by the American Medical Association. The Section continues to strengthen our ties with the medical community through this program. The program again had record-breaking attendance, including over 35 physicians. The attendees heard from the Senior Vice-President and Chief Medical Officer of Health Care Service Corporation, the Chief Counsel to the Inspector General, and the Deputy Director of Policy at the Center for Program Integrity, as well as many other physicians and lawyers. If you missed the opportunity to attend, materials are available at americanbar.org/abastore/index.cfm?section=main&fm= Product.AddToCart&pid= PDF. The next Conference will be in Chicago at the Palmer House on June 12-13, National False Claims Act and Qui Tam Trial Institute: A new offering in conjunction with the ABA s Center for Professional Development, the National False Claims Act and Qui Tam Trial Institute focused on techniques and strategies to try a false claim and qui tam case, including an actual mock trial from voir dire through to jury verdict. The program was very 18 The Health Lawyer Volume 26, Number 1, October 2013

19 successful and plans are underway to present this program every other year, the next in If you missed the opportunity to attend, materials are available at bar.org/abastore/index.cfm?section=main&fm=product.addto Cart&pid=CEN13LTFCOR. Health Care Fraud: In conjunction with the Criminal Justice Section, the Young Lawyers Division, the ABA Center for Continuing Legal Education ( CLE ), and the National Association of Medicaid Fraud Control Units, the Section presented its 23nd Annual Institute on Health Care Fraud in Miami. This program focuses on Medicaid & Medicare Fraud, Stark Law and Compliance, the False Claims Act, and government policy. If you missed the opportunity to attend, materials are available at index.cfm?section=main&fm=product.addtocart&pid= CEN13HCFCOR. Next year the conference will be held in San Francisco on May 14-16, Distance Learning: Section webinars continue to be one of the most efficient ways of providing CLE to our members and others interested in health law. This is one of the best ways to learn about an array of timely issues and find specific educational offerings targeted at your individual practice area and level of experience. Overall, the Section provided 26 teleconferences on a wide range of topics, servicing over 1,900 members. If you missed them, these are all available for purchase through the ABA s webstore at bar.org/abastore/index.cfm?section=main&fm=product.search &type=b&sgcd=&k=health+law. Publications and Electronic Communications The Section is proud of its growing publication program: The Health Lawyer: For over thirty years, the Section s flagship publication has provided informative and in-depth articles that focus on a wide range of areas in the health law field. Published bimonthly, The Health Lawyer offers incisive analysis of timely and significant issues. ABA Health esource: Each month, the Section s e-newsletter helps keep members informed by providing the most recent health law news and resources. Readership for the newsletter continues to grow as many Section members forward it to colleagues and clients. With the publication of the HIPAA Megarule, the ABA esource Editorial Board, in conjunction with the Section s ehealth, Privacy & Security IG, published two Special Editions in February and July focused on the Rule s implications. Books: The Section continues to publish various types of publications, from desk references/treatises to shorter practical guides on a variety of topics. Many of these publications are updated annually to ensure that the information provided is as up to date as possible. This coming year, the What Is series will launch, with What is Stark and What is AKS being the first releases. A HIPAA practical guide, 2nd Edition will also be released next Spring. Stark and Anti-Kickback Toolkit. The Section continues to offer its comprehensive on-line subscription-based topical library of the applicable laws, regulations and other guidance available on the Stark Law and the Anti-Kickback Statute. This publication is an invaluable, affordable asset for conducting research and legal analyses of these complex areas of the law. If you haven t heard about it, watch the demos at Breast Cancer Task Force The Section continues to expand the Breast Cancer Task Force s pro bono activities. The initiative was developed to provide training to lawyers to enable them to counsel breast cancer patients on legal issues related to their condition and treatment. So far in 2013, training workshops were held in Dallas, Miami and San Francisco, with planning underway for programs in New Mexico and Philadelphia. The ABA Premier CLE Series will feature this program in early The Breast Cancer Advocacy Guide update is complete and available for download from the Breast Cancer website: org/groups/health_law/breast_cancer_task_force.html. Administrative Updates As noted above, the Bylaws of the Section were amended to create a new government attorney position on the Council. The Section continues to ramp up and refine its efforts in social media. Be sure to like us on Facebook and join our group on Twitter and LinkedIn. The Web and Technology Committee has put great effort into these programs; all IGs have their own Twitter page for posting relevant information to that particular IG. For the first time, the Section hosted a Section leadership orientation and training meeting. Bringing together the leaders of the IGs, Committees, Task Forces, and Editorial Boards results in exceptional synergies and opportunities for collaboration on new projects and activities, all designed to provide relevant and valuable services to you, our members. No one does this alone and I have been privileged to work with outstanding leaders at all levels of the Section and a terrific staff. To name them all would take more time and space than I have but I want to extend my deep appreciation for all of their hard work and enthusiasm. The Section Officers and staff deserve special recognition: Kathye Scully-Hayes, Chair-Elect; Michael E. Clark, Vice-Chair; William Horton, Secretary; Hien McCombs, Budget Officer; Wanda Workman, Director; Simeon Carson, Associate Director; Nancy Voegtle, Senior Meeting Planner; Naomi Shicly, Program Specialist; and Jason Billups, Administrative Assistant. It was a pleasure to work with this team on many major issues and projects. I am especially pleased to leave you in the very capable hands of Kathleen Scully-Hayes, the first judge to ever Chair this Section. While we faced a number of special challenges this past year, the previous leaders of the Section had built a strong foundation that was able to survive and even thrive. However, you are the primary reason for the Section s success, and your continued involvement is essential for us to fulfill our mission. Please stay involved and let us know if you have any suggestions. The Section is here to serve you! Sincerely, David Douglass Health Law Section Chair Volume 26, Number 1, October 2013 The Health Lawyer 19

20 Chair s Corner continued from page 9 talented leaders of our interest groups, task forces and administrative committees for a planning and training meeting. As the incoming Chair, I had the opportunity to sit in on several of the meetings. The enthusiasm and energy of each person present at the meeting was inspiring. Equally inspiring was the depth of experience and areas of expertise that each participant brought to the meeting. I was struck by the variety of backgrounds that make up this Section. There were partners from large law firms, solo practitioners, in-house counsel, government lawyers, law professors, and lawyers who were also physicians and or allied health professionals. There were mediators and members of the military, young lawyers and people who have practiced for many years. Although these leaders brought a tremendous diversity of experience and background to the meeting, they all have one thing in common they are health lawyers who are committed to the Health Law Section of the ABA. They are equally committed to sharing their knowledge and expertise. That commitment is exhibited in our programs and publications, our webinars and on our website. The most timely health law topics and questions are continually researched and analyzed by our interest group and task force members. Even more exciting is the exchange of ideas and support our members offer each other. Our interest groups and task forces cover a wideranging list of topics, some well-known, some not so well-known. Additionally, as changes in healthcare law create additional practice opportunities, the Health Law Section has expanded to include them, such as Nursing and Allied Health, Substance Use Disorders, and Conflict Resolution in Healthcare, to name a few. In the coming months, I plan to use this column to highlight the work of our newer and/or less well-known interest groups and task forces. In the meantime, I encourage all of you the full time health law practitioners and the occasional health law dabblers to look to our Section when you need answers to your health law questions. Our live and web-based programing, our publications and our website offer a wealth of information. Join an interest group (or 3), it is free! Conversely, if you have knowledge and or insights you would like to share, the Health Law Section needs you, as well. If you have suggestions or comments on how we can better serve our members, please call or me or any of the officers or Council members. We welcome your input. So, are you a health lawyer? If your answer is yes, then the Health Law Section is where you, too belong! Kathye The Editorial Board provides expertise in specialized areas covered by the Section. Individual Board members were appointed by the Interest Group Chairs and Editor Marla Durben Hirsch. If you are interested in submitting an article to The Health Lawyer, you may contact one of the Editorial Board members or Ms. Hirsch. With the establishment of the Editorial Board, the Section strengthens its commitment to provide the highest quality analysis of topics in a timely manner. Marla Durben Hirsch Potomac, Maryland 301/ Lisa L. Dahm South Texas College of Law Houston, TX ehealth, Privacy & Security Editorial Board Co-Chair 713/ Howard D. Bye-Torre Stoel Rives LLP Seattle, WA Employee Benefits & Executive Compensation 206/ Marcelo N. Corpuz III Walgreens Health Services Deerfield, IL Business and Transactions Editorial Board Co-Chair 847/ Adrienne Dresevic The Health Law Partners Southfield, MI Liaison to the Publications Committee 248/ Jason W. Hancock Hospital Corporation of America Brentwood, TN Health Care Facility Operations 615/ David L. Haron Foley & Mansfield Ferndale, MI Healthcare Fraud & Compliance 248/ Bruce F. Howell Schwabe, Williamson & Wyatt, PC Portland, OR Life Sciences 503/ Lauren Mack Polsinelli, PC Chicago, IL Tax & Accounting 312/ Rakel M. Meir Tufts Health Plan Watertown, MA Managed Care and Insurance 617/ Monica P. Navarro Thomas M. Cooley Law School Auburn Hills, MI Physician Issues 248/ C. Elizabeth O Keeffe Wyatt, Tarrant & Combs, LLP Jackson, MS Public Health & Policy 601/ Leonard M. Rosenberg Garfunkel Wild, PC Great Neck, NY Healthcare Litigation & Risk Management 516/ Felicia Y. Sze Hooper, Lundy & Bookman, P.C. San Francisco, CA Payment & Reimbursement 415/ Edward Vishnevetsky Munsch Hardt Kopf & Harr PC Dallas, TX Young Lawyers Division 214/ The Health Lawyer Volume 26, Number 1, October 2013

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