Health Care Law: The Winding Path Of The Stark Law And Medicaid Claims

By Melissa A. Mora

If the Stark law, 42 U.S.C. § 1395nn, was not perplexing enough, recent decisions and settlements have made it even more puzzling. Until the past few years, the federal government primarily enforced the Stark law through false claims act cases where providers engaged in some type of prohibited relationship with a physician resulting in improper referrals from that physician and the submission of a Medicare claim.

The Omnibus Budget Reconciliation Act of 1993 amended the federal statute governing payments to states - 42 U.S.C. § 1396b. The Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, (Aug. 10, 1993). Specifically, this regulation provides that no Medicaid payment shall be made for the provision of a designated health service to an individual on the basis of a referral that would result in the denial of a payment under the same terms and conditions for a Medicare claim under the Stark law. This legislation increased the existing misperception as to the application of the Stark law on Medicaid claims.

In an effort to clarify some of the confusion, the Centers for Medicare and Medicaid Services (CMS) indicated in commentary that it does not believe the rules and sanctions under the Stark law apply to physicians and providers when the referral involves Medicaid claims. 63 Fed. Reg. 1659, 1704 (January 9, 1998). This was further complicated as CMS went on to say in the same guidance that it cannot pay for Medicaid claims that violate the Stark law, but that the state could. CMS declined to finalize the proposed language and, to date, has not issued any further commentary as to the Stark law’s reach in Medicaid cases.

Over the past few years, a number of courts interpreted 42 U.S.C. § 1396b to extend the Stark law and false claims liability to Medicaid claims. See Fresenius Med. Care Holdings, Inc. v. Tucker, 704 F.3d 935, 937 (11th Cir. 2013); United States v. Tenet Healthcare Corp., 2012 WL 2871264, at *6 (S.D. Fla. July 12, 2012); United States v. Halifax Med. Ctr., 2012 WL 921147, at *3-4 (M.D. Fla. March 19, 2012).

More recently, in United States v. All Children’s Health Systems, Inc., 2013 WL 6054803 (M.D. Fla. Nov. 15, 2013), the court denied the defendant’s motion seeking to dismiss the action based on the defendant’s argument that the Stark law does not apply to Medicaid claims. The court, in citing to the decisions referenced herein, found that although the defendant’s argument is generally correct that the Stark law applies to Medicare claims, the referral prohibition also applies to Medicaid claims through 42 U.S.C. § 1396b(s).

These decisions and recent government enforcement efforts are shedding light on the expanded application of the Stark law to Medicaid claims, once thought to only to apply to Medicare claims. Going forward, we may see additional cases with similar results as the government makes significant effort not to pay for any false or improper claims.

In the face of the government’s heightened sensitivity to the submission of false and improper claims, the health care community should proceed with caution when navigating the winding path of the Stark law’s applicability to Medicaid claims.

Young Attorney Volunteers Time To Help Elders

Robert Walton has a special place in his heart for elderly people. As a child, he grew up watching his 84-year-old grandfather caring for his grandmother, who was in a wheelchair. 

"I didn't realize then what an impact it would have on me," said Walton, who is now a Stetson Law School graduate focusing his practice on estate planning and elder law. "I approach all my cases from that perspective."

Walton spoke recently at the St. Joseph's John Knox Village in Tampa about important legal matters facing the elderly public. The presentation was a part of the Hillsborough County Bar Association's Lawyer Referral & Information Service's outreach program connecting community members with attorneys who can help them.

Walton says that with the baby boomers reaching their elder years and Florida continuing to be a prime location for retirement, it is important that the Tampa Bay area legal community take active steps to help the elderly.

"It is an absolute need in Tampa Bay, and a need that the Bar has to meet," Walton said. "We need to try to be a part of that law-making practice."

Walton is a very active member of the HCBA. He was selected for the HCBA Bar Leadership Institute Class of 2014-2015 and, as part of the HCBA Lawyer Referral & Information Service, he participates in the monthly Ask-A-Lawyer program on Fox 13 News.

"It's a huge opportunity for someone like me who is a solo practitioner," Walton said of his participation in the HCBA and LRIS programs. "I get to work with my peers and meet people from all over Tampa. It's given me an opportunity to learn and give back to the community. It's tremendous."

For information about joining the HCBA Lawyer Referral & Information Service, call 813-221-7780.

Elder Law: Off To A Great Start

By Elizabeth P. Allen and Debra L. Dandar

With the holiday season upon us, we would like to report on our recent and upcoming Elder Law Section meetings. We started off the year with a bang. Our first speaker was Kathleen Kowalik, DCF Medicaid specialist, accompanied by her teammate, fellow Medicaid specialist Elizabeth Thomas. Together, they presented a thorough overview of the Medicaid Institutional Care Program application process, including analysis of assets, income, transfers, technical requirements, and proper procedures to use in submitting an application through the ACCESS website. We had a terrific turnout, and many participants stayed late to ask additional questions of our speakers. Both specialists were very generous with their time, staying until all questions had been answered. We are most appreciative of their consideration in sharing their knowledge with us.

At the October meeting, Rebecca C. Bell, LLM, presented a Medicaid Managed Care Update. The information provided was important, timely, and highly relevant, and we thank her for sharing her knowledge with us. Our November luncheon speaker was Diane Daniels, Medicare specialist, who planned to address various issues concerning Medicare coverage. Since seniors are reviewing their options for Medicare coverage for the upcoming year, this timely topic will help us assist our clients in making informed choices and will enable us to help clients deal with coverage issues they may face.

Our speaker for December 12 is Laura Penley, district long-term care ombudsman, who will discuss laws, rules, and issues concerning nursing homes and residents’ rights. We look forward to the opportunity to increase our knowledge in this area so that we may act as better advocates for our clients.

Additional speakers in 2015 include Dale Krause (January 9), who will discuss Medicaid and VA compliant annuities, and Travis Finchum (February 5), who will discuss SSI rules and lesser-known Medicaid programs such as QMB, SLMB, QI1, and Medically Needy, as well as answer questions regarding special-needs trusts. Tae Kelley Bronner (April 23) will address homestead issues. Tae anticipates that new homestead legislation may be passed in 2015, and she plans to provide us with an update on that topic. We are also planning to add presentations on VA benefits and probate estate issues.

Each luncheon qualifies for one hour of CLE credit and provides for networking opportunities with your friends and colleagues. Networking begins at 11:30 a.m., with luncheons beginning at noon. All luncheons are held in the Chester H. Ferguson Law Center.

So please join us at our meetings, and if you have suggestions, ideas for speakers or topics, or an article submission for the Lawyer magazine, please contact Elizabeth P. Allen, eallen@gibblaw.com or 813-877-9222, or Debra L. Dandar, Debra.Dandar@TampaBayElderLawCenter.com or 813-282-3390. 

We look forward to seeing you and wish each of you a very happy holiday season.

Military & Veterans Affairs Committee: The Military Veterans Treatment Court

By Bob Nader and Lt. Col. Christopher Brown

“And silence sounds no worse than cheers … after earth has stopped the ears.”

One may be tenderly reminded of A.E. Housman’s immortal To An Athlete Dying Young when visiting the courtroom of the Thirteenth Judicial Circuit’s Veterans Treatment Court to observe military veterans of our community who dutifully served their country stand at the bar, approach the bench, and reveal their stories. Once superbly trained and courageous as any celebrated athlete, if not more so, these proud veterans of the Afghan and Gulf Wars and the Vietnam conflict of two generations ago have entered upon hard times. With spirit bent but not unbroken, they now step before presiding Judge Richard Weis and bravely commit to the conditions of the 12-month voluntary treatment program afforded to these soldiers of now lesser fortune with a renewed opportunity for redemption.

 During the four years of World War II, 11.2 percent of the nation's population was actively engaged in some form of military service. During the Vietnam era of over a decade, 4.3 percent of the nation's population served. However, since 2001, only 0.45 percent of our population has served in the Global War on Terror. Hence, our nation has now asked the relative few to sacrifice in defending our country.  And many of these men and women volunteers return home altered of body and spirit, suffering from military-service-related mental illness, traumatic brain injury, substance abuse disorder, or psychological issues, resulting in offenses, charges brought, and criminal arrests. How can a community give back to its veterans in need? One way our judicial system is giving back is through Veterans Treatment Courts.

The Veterans Treatment Court of Hillsborough County (VTC) was established through a collaborative effort involving Chief Judge Manuel Menendez Jr.; the judges of Hillsborough County; the Offices of the State Attorney and Public Defender; the Offices of the Court Administrator and Clerk of the Court; state and federal Departments of Veterans Affairs; numerous veterans service organizations; and other civilian and military community partners. Through the VTC, veterans enter a misdemeanor diversion program where they accept treatment from the Department of Veterans Affairs (VA) and other providers in lieu of criminal prosecution.

After signing a participant agreement that outlines the duties of the veteran charged and the consequences of failing to comply, the would-be criminal defendant, upon acceptance into the program, is assessed and by court order given an appropriate treatment plan that is implemented using existing VA assistance packages and protocols the veteran may not have known existed or may have had trouble accessing in the past. The ultimate goal is to rehabilitate the veteran through proper diagnosis and treatment, to preclude further involvement in the justice system, and to protect the public. Upon fulfillment of those responsibilities and completion of the extended program, the veteran graduates, receives a certificate of success, and has his or her record favorably resolved.

The VTC currently adjudicates certain specified misdemeanor offenses set out in an administrative order. In the near future, the VTC will incorporate provisions of the T. Patt Maney Veterans’ Treatment Intervention Act enacted by the Florida Legislature, resulting in a significant increase in the number of veterans entering the treatment programs the court is designed to administer. As Chief Judge Menendez commented, “With the support of our criminal justice partners and the VA, we (the Thirteenth Judicial Circuit) are in the process of expanding our VTC to handle felony cases. Judge Weis has done a yeoman’s job for the past two years initiating our misdemeanor cases, and we are now preparing to offer eligible veterans charged with certain felony offenses the opportunity to participate in the same treatment program without compromising the safety of the public.”

In addition to the treatment plan ordered, the VTC also operates by using existing court staff and additional outside resources to mentor the veterans before the court. The mentoring coordinator, Col. (Ret.) D.J. Reyes, and other veterans serve as volunteer mentors providing supportive roles in the process. Jarred Miller, who is the VA liaison to the VTC, determines available benefits and coordinates treatment and counseling services through applicable VA programs. 

As a part of its mission, the Mentoring Subcommittee of the HCBA’s Military & Veterans Affairs Committee (MVAC) is spearheading an effort to place additional volunteer mentors at the request of the VTC to act as a “battle buddy” or role model to the veterans in the program. It may be as simple as talking to your protégé about his or her progress in the program or upcoming milestones or securing feedback from the VA representatives and other support personnel with whom you may interface to determine the veteran’s status of achievement. You would then accompany the veteran at the semi-monthly court appearance intervals to provide input and the affirmative directions being taken by the veteran during the course of the program.

You are invited to get involved with this meaningful HCBA committee and become a mentor. As Judge Menendez envisions for the future, “We look forward to working with MVAC in this effort to enhance our Veterans Treatment Court, which has proven very successful in other communities.”

Diversity Committee: Staying In The Game: Women, Leadership, And The Law

By Katherine Earle Yanes

The statistics of women in the law compared with female lawyers in leadership roles are staggering. Nearly one-third of lawyers are women, and women account for approximately 45 percent of law firm associates ― roughly proportionate to the percentage of female law school graduates. Yet, despite the numbers, women are not obtaining leadership positions consistent with their representation in the profession: 

• Women make up approximately 19.9 percent of law firm partners.

• About 16 percent of equity partners at large law firms are women, a number that has remained unchanged for about 10 years.

• At the 200 largest law firms in the United States, 4 percent of managing partners are women.

• As of 2011, the median salary of female lawyers was 86.6 percent of the median salary of male lawyers.

• Out of the Fortune 500, 21.6 percent of general counsel are women.

• In the federal judiciary, 24.1 percent of judges are women; in the state judiciary, 27.5 percent of judges are women.

The statistics on female representation at Tampa Bay area law firms are consistent with these figures. A recent Tampa Bay Business Journal article reported that, overall, Tampa Bay area law firms “lag behind national statistics in diversity.”  

The Factors

Many factors may contribute to this leadership gap. Law firms that participated in the 8th Annual NAWL Survey on Retention and Promotion of Women in Law Firms identified the following barriers to women achieving equity partnership:

• lack of business development (44 percent)

• attrition, i.e., women leaving a firm or a slowdown in work among women who remain at a firm (31 percent)

• fewer sponsors and mentors (11 percent)

• work-life balance (10 percent)

Additionally, women are more than twice as likely as men to leave law firms. Of those who leave law firms, nearly one-third of female associates and another one-third of female, non-equity partners also leave firm practice entirely, as compared with 20 percent of men at each of those levels.   

Addressing the Disparity

Beginning in January 2015, the Tampa Bay Chapter of the Federal Bar Association, in conjunction with other area Bar associations and organizations, including Stetson University College of Law, the Hillsborough Association of Women Lawyers, the Pinellas County Chapter of the Florida Association of Women Lawyers, the George Edgecomb Bar Association, and the Florida Association of Women Lawyers, will host a program titled “Staying in the Game: Women, Leadership, and the Law." The purpose of the program will be to foster dialogue in an effort to address this disparity by identifying steps that law firms, organizations, law schools, and lawyers can take to encourage female lawyers not to take themselves out of the game but instead to continue on the path toward leadership positions. 

The program will begin in January 2015 with a one-afternoon CLE and roundtable discussion. Following that program, participants will be divided into smaller discussion groups that will meet quarterly throughout 2015 to discuss what law firms, law schools, organizations, and lawyers can do to retain talent and build female leaders. At the end of the one-year project, the recommendations of each discussion group will be synthesized in a report that will be made available to area law firms, organizations, law schools, and lawyers.  

If you are interested in participating in this program, please email Erin Jackson at ejackson@tsghlaw.com or Katherine Earle Yanes at kyanes@kmf-law.com. 

Construction Law: Yes “SIR,” I Paid That …

By Jeffrey M. Paskert and Ryan E. Baya

The recent Florida Supreme Court opinion Intervest Construction of Jax, Inc. v. General Fidelity Insurance Co., 133 So. 3d 494 (Fla. 2014) illustrates the effect contract interpretation principles can have on the evaluation and scope of insurance policies and coverage. Intervest concerned the application of a Self-Insured Retention Endorsement (“SIR”), and whether a general contractor or its insurer was obligated to fund a settlement for a bodily injury claim.

During construction of a home, the general contractor hired a subcontractor to install attic stairs. After construction was complete, the homeowner fell from the stairs, suffered injuries, and ultimately sued the general contractor. The general contractor sought indemnification from the non-party subcontractor under the terms of their subcontract agreement. At the time of the accident, the general contractor held a CGL insurance policy containing a $1 million SIR. The SIR amended the policy to provide coverage only after the general contractor paid $1 million toward a covered loss. The subcontractor also maintained a CGL policy, but the general contractor was not an additional insured on that policy.

The parties ultimately settled the homeowner’s claim for $1.6 million. The subcontractor’s insurer paid $1 million to the general contractor to help settle the indemnification claim, which the general contractor, in turn, paid to the homeowner. However, the general contractor and its insurer disagreed about who between them was responsible for the remaining $600,000. Eventually, each paid $300,000 and reserved their rights to seek reimbursement from the other.

In a subsequent federal court action, the general contractor and insurer pursued declaratory judgment claims, each seeking a ruling that the other was obligated to fund the $600,000 settlement payment. The general contractor argued that it had satisfied its SIR by paying the homeowner the $1 million indemnification payment it had received from its subcontractor. The insurer argued that the subcontractor’s $1 million payment did not satisfy the SIR because the money originated from the subcontractor, and the SIR policy language required the general contractor to pay the SIR out of its own funds. The federal district court granted summary judgment in the insurer’s favor, and the general contractor appealed. On appeal, the Eleventh Circuit found no controlling precedent under Florida law and certified determinative questions to the Florida Supreme Court.

The Florida Supreme Court sided with the general contractor and against the insurer. Citing contract interpretation principles that construe ambiguous insurance policies against insurers, the Supreme Court found that the policy language allowed the general contractor to use the subcontractor’s indemnification payment to satisfy the general contractor’s SIR. As a related aside, the court also held that the policy’s transfer of rights clause did not address the priority of reimbursement, and thus, the policy language did not abrogate Florida’s “made whole doctrine,” which entitled the general contractor to be made whole first before its insurer.

Though Intervest leaves many questions unanswered, it underscores the importance that basic contract interpretation principles have on insurance coverage disputes.

Immigration Law: Channeling Our Inner Atticus Finch

By Maria del Carmen Ramos

I still remember the moment I knew I wanted to be a lawyer. Three years after my family moved here from Puerto Rico in search of a better opportunity, I read Atticus Finch’s closing argument in To Kill a Mockingbird for the first time:

We know that all men are not created equal in the sense that some people would have us believe. ... But there is one way in this country in which all men are created equal. An institution that makes a pauper the equal of a Rockefeller, the ignorant man the equal of any president, and the stupid man the equal of Einstein. That institution is the court.

After hearing Atticus Finch eloquently and powerfully explain it was our judicial system that gave meaning to Thomas Jefferson’s immortal words “all men are created equal,” I knew I was destined for law school.

For some of us, however, the idealism that led us to law school faded somewhere between graduation and the time the reality of practicing law set in. With the practice of law came billable hours, the difficulty of meeting clients’ demands, developing a book of business, and hopes of partnership. Add in the stress of juggling professional obligations with family needs, and I’ll confess that Atticus Finch’s stirring words were a distant thought that hadn’t crossed my mind in years. It became easier to forget what first convinced me to become a lawyer.

Yet, as I read more and more about the crisis at our southern border, the stories stir in me that idealism from my youth. In a way, the unaccompanied minors remind me of Tom Robinson in To Kill a Mockingbird. They are vilified by some — hopefully a small minority — because they look different. Worse, they are defenseless and voiceless. Unlike most criminal defendants, they don’t have a right to an attorney. Although many of the unaccompanied minors may be eligible for asylum or visas for victims of trafficking or other criminal activity, few may get that relief without competent counsel, which means they will be returned to countries where they are not safe.

That is why, in keeping with Chief Judge Manuel Menendez’s administrative order on pro bono service, our section members (individually or collectively) should work to ensure that the unaccompanied minors living in the Tampa Bay area (29 at last count) have adequate legal representation. During our section’s kickoff luncheon, Adriana Dinis and Sophia Lynn highlighted the overwhelming need in our community for members of our immigration bar to volunteer their time and talents to help the unaccompanied minors.

I sincerely hope you join me in that worthy cause. Only you can ensure “all men are created equal.” Only you can make an unaccompanied minor the equal of a Bill Gates. To paraphrase Atticus Finch: Our immigration system is only as sound as its immigration bar, and the immigration bar is only as sound as the lawyers who make it up.