News

New TBJ Features Update on Med Mal

In the November issue, out today, the Tennessee Bar Journal looks at the Tennessee Medical Malpractice Act five years after two important statutes were enacted. Clinton L. Kelly writes about how the appellate courts have interpreted the notice statue and the certificate of good faith law. Also, don't miss words of wisdom from the students of the Law Launch Project, such as: "A group of people thrown into a pit of hell together will either kill each other or band together to fight the evil forces. I think in law school it happens both ways."

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Alexander: Bill Would 'Force' Administration to Provide Answers about Obamacare

Republican state Sen. Lamar Alexander told Fox News yesterday that he is going to introduce a bill next week to “force” the administration to provide answers about the Affordable Care Act rollout. The Chattanoogan reports that the proposal would require the administration to provide weekly reports to Congress andto  states on enrollment, efforts to resolve the site’s technological problems and information about the organizations that have contracted as navigators.

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Medicare Terms Still Make a Difference After 'Bagnall' Ruling

In her recent "Senior Moments" column, Knoxville lawyer Monica Franklin details the differences in the Medicare world between the terms "observation" and "admission." The use of one or other of the words can make a huge difference in whether your client will incur extra costs for the hospitalization and whether your client will receive the Medicare benefit to pay for skilled care in a rehabilitation facility. In the column, Franklin references Bagnall v. Sebelius, which at the Journal's press time was pending. Late last month, Judge Michael P. Shea ruled against the plaintiffs and granted the government's motion to dismiss the action.

The plaintiffs' main substantive claim was that observation status violates the Medicare statute because it deprives them of coverage they are entitled to by law. The judge dismissed this claim by relying on a federal appeals court case that held that it is permissible for Medicare to consider someone an inpatient only if she has been formally admitted by a hospital. Franklin notes that the Improving Access to Medicare Coverage Act of 2013 (H.R. 1179), currently in the Subcommittee on Health, provides that a three-day stay in the hospital, regardless of observation or admission status, would allow a Medicare beneficiary to receive benefits to pay for skilled care in a rehabilitation facility.

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St. Jude Names New Chief Legal Officer

Robyn Diaz has been named chief legal officer and senior vice president of St. Jude Children’s Research Hospital. With 10 years of health law experience and 15 years of experience in the health care industry, Diaz joined the hospital’s Office of General Counsel as associate general counsel in August 2010. She was promoted to deputy general counsel in May 2012. “Robyn’s expertise and experience provide a strong foundation upon which she will continue to excel as a member of our senior management team at St. Jude,” St. Jude Director and CEO Dr. William E. Evans said in a press release.

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Judge Grants Restraining Order on Controversial State Rules for Health Law Navigators

U.S. District Judge Todd Campbell issued a temporary restraining order today blocking Tennessee from enforcing part of the controversial emergency rules regulating the actions of people seeking to sign up the uninsured for coverage under the federal health law. The judge found issue with one of the definitions for a health law navigator and issued an injunction against it effective until Oct. 21, saying the rule was not “narrowed or tailored.” That language spelled out a navigator as anyone who “facilitates enrollment of individuals or employers in health plans or public insurance programs offered through the exchange.” The Tennessean has more.

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Deadline Set for Filing Meningitis Claims

A federal judge in Massachusetts has set Jan. 15, 2014, as the deadline for filing claims in the bankruptcy case against the New England Compounding Center. The order, signed by U.S. Bankruptcy Judge Henry Boroff, includes detailed instructions on the information victims or their survivors must provide to have their claims considered. Tennessee attorneys representing victims of the nationwide fungal meningitis outbreak said they were pleased that the order provides additional time to file a claim, The Tennessean reports. They note, however, that the deadline applies only to claims against the center. Claims filed against other entities such as hospitals and clinics are subject to a one-year limit in state law.

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Haslam: Navigator Rules Not Meant to be ‘Stumbling Block’

Following a Nashville judge’s decision yesterday to not block state rules concerning health insurance navigators and counselors, the parties now are preparing for next week’s preliminary injunction hearing. When asked about the case yesterday, Gov. Bill Haslam defended the rules saying they were approved by the legislature with wide bipartisan support and were enacted at the last minute only because of a delay in the federal guidelines. Saying he wants to see the exchanges work well, Haslam reiterated that that the rules are not “intended to be a stumbling block,” the Times Free Press reports. Meanwhile, opposition to the rules continues to grow. Yesterday, the city of Nashville filed an amicus brief supporting the suit challenging the state's position. The Tennessean has more.

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TRO Denied, Narrow Enforcement Urged in Navigator Rule

After an hour-long hearing on a request for what Chancellor Russell Perkins characterized as a total restraining order, the Davidson County chancellor this afternoon denied a request to enjoin all enforcement of the emergency rule restricting advice and facilitation of information to consumers and businesses under the Affordable Care Act. In its ruling, the court did admonish the state to narrowly enforce the act as only applying to federally defined “navigators.” The state appeared to agree with the request. A hearing on a preliminary injunction is set for Oct. 9.

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Federal Background Checks of Health Counselors on Hold

The Tennessee Department of Commerce and Insurance is backing off a requirement that health counselors be fingerprinted and undergo federal background checks before advising the public about health insurance options under the Affordable Care Act. The agency, which issued rules last week mandating federal background checks, now says there is not enough time to run checks through the federal system so basic background checks will have to do. It also clarified that anyone at a church or library can give advice without needing a background check so long as they are not handling confidential information. The Tennessee General Assembly previously passed legislation requiring background checks for those who handle sensitive information in the process of helping Tennesseans file for new health insurance coverage. Nashville Public Radio has the story.

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Vanderbilt Accused of ‘Patient Dumping’

Already facing lawsuits on its recent decision to lay off thousands of workers, Vanderbilt Medical Center is now being accused of discharging patients prematurely – a practice known as “patient dumping.” A suit working its way through circuit court in Nashville claims that the early discharge of a motorcycle accident victim is part of a broader practice the hospital uses when people are not able to pay for care they need. In response to the suit, lawyers for Vanderbilt deny that the care was deficient or that the patient was “dumped.” They have asked that the case be dismissed. In another story, The Tennessean reports that the hospital was fined $80,000 in 2008 for refusing to accept a patient with an “unstable emergency medical condition.”

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Are Lawyers Health Insurance Navigators?

The Tennessee Department of Commerce and Insurance has issued emergency rules requiring registration for individuals counseling or advising the uninsured on how to sign up for health care coverage or facilitate enrollment by companies under the Affordable Care Act. The rules implement legislation adopted earlier this year. The Tennessean reports that critics say the rules are overly broad, will delay their work, and will not protect the public from fraud. Due to the broad nature of the rules, the TBA is investigating how they might affect attorneys advising individual and business clients on health care insurance matters.

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Feds Boost Health Care Fraud Investigations, Including in Tenn.

Federal agencies are continuing to boost their efforts to investigate health care fraud, including in Tennessee, the Tennessean reports. Over the past four years, the Obama administration has recovered more than $14.9 billion in health care fraud judgments, settlements and administrative impositions, according to the U.S. Department of Health and Human Services. “If you trace back what our office has done in the last couple of years, you’d see a significant increase” in these types of fraud cases, said David Rivera, the acting U.S. attorney for the Middle District of Tennessee. Tennessee health care institutions such as Vanderbilt University, LifePoint Hospitals and HCA Holding have all recently faced fraud investigations.

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House OKs Rep. Black’s Health Care Bill

In another effort to undo part of the 2010 health care reform law, the House of Representatives passed a bill sponsored by Rep. Diane Black that would bar federal subsidies for people participating in newly created health insurance exchanges until the Obama administration sets up a system to verify if they are eligible. According to the Tennessean, the vote marked the 41st time the GOP-controlled House has tried since 2011 to repeal or delay the Affordable Care Act, also known as Obamacare. The Democratically controlled Senate is not expected to take up Black’s bill, and the president has threatened to veto it if it would pass.

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Magazine Predicts 12 ‘Hottest’ Practice Areas

The September issue of The National Jurist predicts the 12 "hottest" practice areas for the next decade. Those deemed to be “super hot” were health care, administrative, intellectual property and family law. Food and drug law, tax litigation, privacy law and compliance law were ranked as “hot.” And employment, energy, manufacturing and immigration law were judged “somewhat hot.”

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Judge Sets Deadline in Life Care Centers Lawsuit

Federal prosecutors won't know until next spring if a massive whistle-blower Medicare fraud lawsuit against Life Care Centers of America can proceed to trial. The case was filed in 2008 and merged with a similar 2012 lawsuit, which involves allegations that the company provided unnecessary, often harmful, therapies to patients in its assisted living facilities to maximize Medicare billings. The Chattanooga Times Free Press has more about the case and the Cleveland, Tenn., based company.

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Haslam in D.C. Seeking Medicaid Flexibility

Tennessee Gov. Bill Haslam was in Washington today to talk with federal officials about his “third way” Medicaid expansion. Though he doesn’t expect to come back with a definitive answer or proposal for the state legislature, the Memphis Business Journal reports that Haslam is weighing how his final decision will impact the state’s hospitals. When asked in a news briefing whether recent layoffs at Vanderbilt University Medical Center are relevant to the debate, Haslam said, “It’s something we have to take into account.” But he was quick to point out that the hospital’s financial troubles may be due more to sequestration, Medicare cuts and a reduction in federal disproportionate share payments.

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Assets of HRC Owners' Wives Frozen

Davidson County Circuit Court Judge Amanda McClendon has agreed with prosecutors that the wives of the men running HRC Medical, the former hormone replacement company based in Nashville, were in on the efforts to divert more than a million dollars from the company. Bonnie Hale and Dixie Hale, married to Dan and Don Hale, are now also embroiled in the state of Tennessee's lawsuit against HRC. A judge has ordered that both women's assets be frozen.  Last fall, the attorney general sued HRC alleging the company had put thousands of patients' lives in danger by failing to warn them about the risks and side effects of their so-called bio-identical hormone therapy. Learn more from the Attorney General's office.

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Former Nashville Lawyer, Obama Advisor Joins Equity Firm

Nancy-Ann DeParle, a former Nashville attorney and one of President Barack Obama’s chief advisors on health care reform, has joined the private equity firm Consonance Capital Partners, the Tennessean reports. The firm, located in New York City, focuses exclusively on investing in the U.S. health care industry. From 2009 to January 2013, DeParle served in the Obama White House, first as counselor to the president and then as director of the White House Office of Health Reform, where she spearheaded Obama’s effort to enact the Affordable Care Act and managed initial implementation of the law. Earlier in her career, she was commissioner of the Tennessee Department of Human Services.

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Haslam: Still No Decision on Medicaid Deal

After announcing a wellness plan aimed at getting Tennesseans to eat better, exercise more and avoid tobacco products yesterday, Gov. Bill Haslam said he is still talking with federal officials about a deal to provide health care coverage to more low-income individuals. Haslam said he is planning a trip to Washington, D.C., later this month to figure out whether the two sides can come to an agreement on a way to expand coverage without growing the state’s TennCare Medicaid program. “We’re very serious about trying to see what the best long-term answer is for Tennessee,” Haslam said. The Nashville City Paper has the story.

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House OKs 40th Effort to Repeal Health Law

The U.S. House of Representatives approved legislation by a vote of 232-185 today to prevent the Internal Revenue Service from implementing any part of President Barack Obama’s health care law, WATE reports. Sponsor Rep. Tom Price, R-Georgia, said, "We simply want patients and families and doctors to be in charge of health care, not Washington, D.C., and not the IRS." Today's debate marked the 40th time the GOP-controlled House has voted to repeal all or part of the health care reform. Most of the measures have languished in the Democrat-controlled Senate.

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Compounding Center Blamed for Meningitis Outbreak Declared Insolvent

The New England Compounding Center, which has been blamed for the deaths of 15 patients treated in Tennessee, has been declared insolvent by U.S. Bankruptcy Judge Henry J. Boroff. Judge Boroff granted the request by the Nashville attorney representing a McMinnville man whose wife died in last year's fungal meningitis outbreak. With the declaration of the center’s insolvency, the widower can file suit in Tennessee under the provisions of the state product liability statute. WBIR has the story. 

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GOP Calls for Delay in Individual Health Care Mandate

Congressional GOP leaders called Tuesday for a delay in requiring that individual Americans carry health insurance. If the White House can grant a one-year delay for employers -- as the administration did just last week -- individuals should get the same consideration, House Speaker John Boehner of Ohio and other senior Republicans said in a letter to the president. White House spokesman Jay Carney said the administration has no intention of delaying the individual mandate. The Chattanooga Times Free Press has the story.

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Health Care Law’s Employer Mandate Delayed

In a major concession to business groups, the Obama administration Tuesday unexpectedly announced a one-year delay, until 2015, in a central requirement of the new health care law that medium and large companies provide coverage for their workers or face fines, the Tennessean reports. The employer requirements are among the most complex parts of the health care law, which is designed to expand coverage for uninsured Americans. Under the law, companies with 50 or more workers must provide affordable coverage to their full-time employees or risk a series of escalating tax penalties. “We have heard concerns about the complexity of the requirements and the need for more time to implement them effectively,” Treasury Assistant Secretary Mark Mazur said in a blog post. “We have listened to your feedback and we are taking action.”

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Attorneys Busy with Nuances of U.S. Health Care Reform

Attorneys are busy at work on some of the lesser-known aspects of the Affordable Care Act, the Memphis Daily News reports. Beginning in January, businesses that employ 50 or more full-time equivalent employees must provide health care plans that meet minimum essential benefits requirements. But the largest employers – those that have 200 or more employees – also must make sure employees are automatically enrolled in a plan by January, said Craig Cowart, a partner with Fisher & Philips. “I’m confident most insurance carriers are working with employers on that now,” he said. “Employees will be able to opt out, but it’s definitely something employers need to be made aware of.”

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Court Finds for Generic Drug Maker

The Supreme Court also ruled today that generic drug manufacturers cannot be sued in state court for a drug design defect if federal officials approved the brand-name version that the generic drug copied. The justices voted 5-4 to agree with generic manufacturer Mutual Pharmaceutical Co. Inc., which had asked that a $21 million judgment against it be dismissed. The Memphis Daily News has the story.

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