Product Detail

Legal Speed Bumps on the Road to Health Information Exchange

John R. Christiansen

ABSTRACT: The development of effective arrangements for electronic health information exchange is a major bipartisan policy goal. The major obstacles to achieving this goal are inappropriate business practices, confusion about the application of federal and state laws, and fear of liability. This article summarizes the state of the law and the findings of a national research project in this problematic area.

Self-Disclosure of Overpayments and Violations of Healthcare Laws: An Analysis of Applicable Laws and Strategies for Whether, When, How, and How Much to Self-Disclose

Thomas S. Crane

ABSTRACT: The author reviews the applicable laws relevant to the selfdisclosure of overpayments and violations of health care laws such as the Anti-Kickback Statute. Next, the author discuss the variety of strategies that need to be considered in making a self-disclosure, including the risks and benefits of a self-disclosure, the risks of non-disclosure, and considerations for disclosing to particular agencies.

What Health Lawyers Should Know (and Why They Should Care) About the McNulty Memo

Craig D. Margolis and Amy L. Riella

ABSTRACT: Less than six months after Judge Kaplan’s 2006 decision in United States v. Stein, holding unconstitutional the Thompson Memo and its use by prosecutors to induce KPMG to cut off legal fees to its former employees, the DOJ announced the replacement of the Thompson Memo. Its successor, the McNulty Memo, appears designed to restrict, but not eliminate, a prosecutor’s ability to seek privilege waiver and to consider a company’s advancement of legal fees. The new policy, however, leaves many wondering whether the DOJ has advocated a true departure from past practice or merely offered a “fig leaf” to appease Thompson Memo critics. Significant questions and concerns remain, and healthcare defense lawyers and in-house counsel will have a significant say in whether the McNulty Memo will be a cure or merely a bandaid for the ills caused by the Thompson Memo.

Washington University v. Catalona: What Questions Remain for the Tissue Ownership Case to Come?

Anthony D. Shaffer and David T. Ball

ABSTRACT: This article explores the questions not answered by the Eighth Circuit’s decision in Washington University v. Catalona, which reframed a perceived clash between research participants’ autonomy rights and concerns about biorepository integrity as a simple question of donor intent. Implications regarding the researcher-employer relationship, tissue donors’ rights, and the importance of written documentation of informed consent are considered in anticipation of a possible future case that would directly pit the rights of research participants to control tissue they have donated against those of a large research institution to retain samples housed in a research biorepository.

NOTES & COMMENTS

Board Independence and Transparency: Searching for the Key to Good Governance

Kathleen M. Boozang

ABSTRACT: Recommendations by various nonprofit best-practices, credit rating agencies, bond issuers, and other government agencies convey significant confidence in director independence as a means toward improved nonprofit and hospital governance. Nonprofits should work with legal counsel to implement these recommendations consistent with their unique not-for-profit nature, in a way that will be mission-supportive, and with an ever-vigilant eye toward the overall goal of improving governance. Further, healthcare entities should not implement independence to the exclusion of other mechanisms for improved governance. Independence as a tool for ideal governance has had mixed results in the business sector. Of concern is that many definitions of director independence imported from the for-profit world are simply ill-suited to nonprofit governance. In light of the uncertainty of success promised by board independence, this article suggests the need to experiment with additional methods for improving governance, focusing specifically, but certainly not exclusively, on transparency.

Practice Resource

Reducing the Risk of a Class Action for Depressed Nursing Wages

Melissa H. Maxman

CITATION: Melissa H. Maxman, Reducing the Risk of a Class Action Lawsuit for Depressed Nursing Wages, J. Health & Life Sci. L., January 2008, at 143. © 2008 American Health Lawyers Association. All rights reserved.

PRACTICE RESOURCE

Internal Billing Investigation Tools

Katherine A. Lauer, Cheryl Wagonhurst, Frank E. Sheeder, II , and Michael L. Silhol

CITATION: Katherine A. Lauer, Cheryl Wagonhurst, Frank E. Sheeder, II, and Michael L. Silhol, Internal Billing Investigation Toois, J. Health & Life Sci. L., January 2008, at 149. © 2008 American Health Lawyers Association. All rights reserved. This material appeared as part of a January 2007 Member Briefing for the American Health Lawyers Association In-House Counsel Practice Group entitled, “Ten Things You Wanted to Know About Internal Investigations* But Were Afraid to Ask.”