Robert M. Wolin

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Physicians in the Bulls-eye

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
Several recently reported cases highlight the growing risk physicians face if they succumb to competitive pressures, especially offers of remuneration from labs, pharmacies, home health agencies and other providers to whom they refer. In many cases, the effort to recoup fees may come years after the physician received and spent the fees, with no insurance … Continue Reading

OIG Signs Up for Customer Loyalty Program

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
In Advisory Opinion 17-05, posted by the U.S. Department of Health and Human Services Office of Inspector General (OIG) on September 7, 2017, the OIG approved a pharmacy’s customer loyalty/discount program (Benefit Program). Under the arrangement, members of the Benefit Program pay a fixed annual fee for access to the following benefits: Discounts on generic drugs, … Continue Reading

Is the Dam Breaking? Over-the-Counter Hearing Aids

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
The FDA Reauthorization Act (H.R. 2430), recently signed into law by President Donald Trump, included the Over-the-Counter (OTC) Hearing Aid Act, which requires the Food and Drug Administration (FDA) to develop regulations within three years for hearing aids to be sold over-the-counter to individuals with mild to moderate hearing loss. The Senate passed the legislation … Continue Reading

Breaching Physician Doubles Down on His Debt

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
In drafting recruitment agreements, providers should separate the employment agreement from the other agreements to help diffuse breach of employment agreement arguments as a defense to the repayment of recruitment advances. Dr. Robert Halterman entered into a recruitment agreement (Recruitment Agreement), a promissory note (Note) and a physician employment agreement (Employment Agreement) with Johnson Regional … Continue Reading

Doc, Can You Hear Me Now? Telehealth Finally Comes of Age in Texas

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
After many years of heated and contentious debate, and opposition by the Texas Medical Association and the executive director of the Texas Medical Board, Texas has significantly revised its telemedicine statute to permit the routine provision of telemedicine services addressing litigation brought against the Texas Medical Board and reflecting the changing consensus regarding telemedicine services. … Continue Reading

Specificity Sometimes Key; Sometimes Not

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
Time spent drafting and negotiating an agreement often pays dividends in assuring that each party gets the benefits they desire through the agreement and incurs obligations no greater than they intended. Two recent cases, discussed below, demonstrate how small drafting oversights resulted in significant litigation costs to the parties and in one case, the party’s … Continue Reading

EMTALA Laboring Along 30 Years Later

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
The Emergency Medical Treatment and Active Labor Act (EMTALA), despite being enacted more than 30 years ago, has produced a case examining the applicability of malpractice damages limitations that bears watching. In Scott v. Ruston Louisiana Hospital Company, the court examined whether state medical malpractice caps are applicable to an EMTALA case. A young patient … Continue Reading

We Cured the Breach of Contract! Oh No, You Didn’t

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
A recent decision from a North Carolina federal court raises interesting lessons for providers surrounding contractual cure and damages provisions. Cone Health entered into a contract with Conifer Physician Services for the provision of revenue management, health information management and billing services. Cone Health has spent a great deal of effort since – litigating whether … Continue Reading

Darwinian Insurance

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
This case demonstrates the need for providers to know and follow the notification provisions set forth in their insurance policies in order to avoid an inadvertent loss of coverage. Once again, the terms of a hospital’s insurance policy coverage have evolved to a hospital’s detriment. Darwin National Assurance provided first-layer excess liability coverage to a … Continue Reading

You Can’t Fire Me for Drug Diversion If I Am Personally Consuming the Drugs

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
A nurse employed by a major medical center was suspected of illegally diverting medications. When confronted by her employer with evidence of suspicious transactions recorded by the provider’s medication monitoring systems, the nurse denied diverting medications but could not explain the suspicious transactions (“I’m not an IT person. I’m a nurse.”). Following termination of her … Continue Reading

Employee Reference Releases: Who’s In and Who’s Out?

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
A recent Indiana defamation case, Manhas v. Franciscan Hammond Clinic, serves as a critical reminder of the importance of scrutinizing physician and employee reference forms and releases. Dr. Sheila Manhas and Franciscan Hammond Clinic (FHC) were parties to a settlement agreement that included a provision whereby Dr. Manhas would direct inquiries from prospective employers to … Continue Reading

Dialing for Dollars Yields Conviction for Home Health Telemarketer

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
Sundae Williams, the owner of Serenity Marketing Inc., made unsolicited phone calls to recruit patients, including Medicare beneficiaries, for contracted home health agencies. Williams and Serenity then referred those patients to the home health agencies in exchange for payments on a per-patient basis. Williams was convicted on one count of conspiracy and six counts of … Continue Reading

Obstruction of a Medicare Audit Doesn’t Require Direct Obstruction of a Federal Agent

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
A registered pharmacist, the owner of two Alabama pharmacies, pleaded guilty to obstructing a 2012 federal audit of Medicare claims and agreed to pay a $2.5 million penalty to the government. The submission of the false and misleading documents by the pharmacy owner constituted obstruction of a federal audit of his Medicare claims, even though … Continue Reading

Medicare Advantage Plan Arbitration Clauses Preempted by Medicare Appeals Process

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
The Arizona Supreme Court, in an interesting case involving a Medicare-related coverage dispute between a Medicare Advantage plan administrator, United Behavioral Health (UBH), and two inpatient psychiatric care providers, held that the Medicare administrative appeals process preempts the arbitration language contained in the UBH provider agreements. The court also remanded the case back to the … Continue Reading

Ambulance and Home Health Moratorium Continued and Expanded

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
The Centers for Medicare and Medicaid Services (CMS) recently announced an extension of its temporary moratorium on enrolling new nonemergency ambulance suppliers in New Jersey, Pennsylvania and Texas and new home health agencies in Florida, Illinois, Michigan and Texas for an additional six months. The agency also announced that the moratorium, which previously applied to specific metropolitan … Continue Reading

Assault of Home Health Worker by a Patient’s Father Prompts OSHA Violation

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
A provider of pediatric home health, Epic Health Services, was recently fined $98,000 by the Occupational Safety and Health Administration (OSHA) in connection with the sexual assault of a home health employee by a patient’s father. Allegations include that the father had regularly attempted to grope the employee and made inappropriate comments about her buttocks … Continue Reading

Does the Medical-School-to-Prison Pipeline Widen in Middle Age?

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
The trend of holding physicians personally responsible for healthcare crimes has continued unabated over the past year. As noted in a previous article, physicians are particularly attractive targets for federal prosecutors due to the “special skill” and “abuse of trust” sentencing enhancements found in the U.S. Sentencing Commission Guidelines. While measuring physician participation in illegal activity … Continue Reading

Insurer Actions Cut the Heart Out of Out-of-Network Providers

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
Aetna Life Insurance Company recently won a $37 million verdict against a group of Northern California surgical centers, Bay Area Surgical Management, LLC and its affiliates (collectively, Bay Area), for an alleged out-of-network overbilling scheme and kickbacks to referring physicians. This lawsuit is simply one more effort in a larger trend by insurers to make it more … Continue Reading

I’ll Gladly Pay You 10 Years From Today for Care Already Provided

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
Most providers whose claims have been determined to be improper by the Recovery Audit Contractors (RACs) under the Medicare Recovery Audit Program have discovered that the appeals backlog “is incontrovertibly grotesque.” Two Courts of Appeals have recently acknowledged that the Office of Medicare Hearings and Appeals (OMHA) has a 10-year backlog of more than 800,000 … Continue Reading

Kickbacks and Commercial Bribery: Another Touchstone to Consider

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
The latest indictment confirms that fraud and abuse analysis is about more than just the federal and state healthcare anti-kickback statutes. The U.S. Attorney for the Northern District of New Jersey has just charged the 26th doctor and 39th person for accepting bribes from Biodiagnostic Laboratory Services in exchange for the wrongful referral of federal … Continue Reading

Debt Collector for Affiliated Physician Group Can Rely on Patient Contact Consent Obtained by Hospital

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
Careful drafting of consent and information release provisions can ensure that providers and affiliated physicians and their debt collectors can contact patient cell phones using automatic telephone dialing systems or artificial or prerecorded voices. The Sixth Circuit recently held that a hospital-based anesthesia group’s debt collector did not violate the Telephone Consumer Protection Act (TCPA) when it … Continue Reading

Drug Manufacturer Discount Cards: Accept With Caution

Photo of Robert M. WolinBy Robert M. Wolin on Posted in Uncategorized
Pharmaceutical manufacturer discount card usage by government program beneficiaries has been an active area for government action in recent years.  In a September 2014 Special Advisory Bulletin, the U.S. Department of Health and Human Services, Office of Inspector General (OIG) stated, “[t]hese coupons constitute remuneration offered to consumers to induce the purchase of specific items.” … Continue Reading
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