This writ raises additional issues that have not been raised in the past. I would compare and contrast since there are variations in the briefs. I would again thank Capt. Bob Vinick for his assistance and for publishing some of his...  more
10
This letter brief, drafted by Capt. Bob Vinick, supports the position that non-lawyers must be allowed to assist non-attorneys both in court and out of court. It relies upon decisions by the U.S. Supreme Court. Now, many states,...  more
2
This paper outlines a conflict that existed in several circuits related to the False Claims Act. It appears that the Federal Courts want to limit the scope of the FCA - Looking back, it was an interesting action and was reviewed by...  more
37
This is an action questioning the administrative actions related to collecting child support in New Jersey.  
Even though it was dismissed, and was drafted before I finished law school, it raises some interesting issues.  
42 USC 602 appears to abrogate 11th amendment immunity and makes the highest state executive officer accountable.   
In 2014-5 an individual from New York informed me about the states failure to terminate child support even though both children on the order were over 21 years old.   
What was sad, and amusing is that one of the children on the order would have been 25 but was still included on the order.  Not only did New York continue to collect child support for a "25" year old, but this child had passed away more than ten years ago.  New York does not automatically terminate child support.   
This issue was raised before the U.S. Justice Department in 2002-3 but was dismissed by a federal judge who said the issue was confusing.  Most states have many computer matches to intercept and collect child support.  But, there are almost no matches to reduce or terminate child support.   
This type of match is done when the state is involved in granting and funding benefits, but not when a state is a recipient of reimbursements from the federal government.  Many states collect bonuses and payments for developing, maintaining and collecting child support.  The amount of these  reimbursements may be partially based upon the amount collected.  The higher the amount collected, the more the states are reimbursed.   
Individuals may not be allowed to bring FCA -false claims actions against states, but this issue does not prevent the U.S. Justice department from bringing actions against a state for false claims against the federal government.

Last Updated (Monday, 13 April 2015 17:27)

 

March 31--As a mother of seven children, Josephine Basher was in tears when she heard about the horrific house fire in Brooklyn that killed seven children.

The children died when a hot plate malfunctioned after it was left on overnnight to keep the family's food warm on the Jewish Sabbath.

"It could have been any of us," said Basher, who lives in Northeast Miami-Dade and bserves the Sabbath weekly, lighting candles and leaving a slow cooker on for at least 24 hours. "They were a regular family, doing their regular thing on a regular Shabbat."

The tragedy in New York two weeks ago brought together observant Jews and Miami-Dade firefighters this week. A workshop on Monday night workshop at Young Israel in North Miami Beach offered advice on keeping safe while adhering to tradition.

Basher, who refrains from using electricity every Friday evening through Saturday night, brought her 16-year-old daughter, Reena, to the workshop.

"Truth be told we would probably not be here if that tragedy didn't just happen," Basher said.

With the eight-day Passover holiday starting Friday, Miami-Dade Fire Rescue workers and members of Hatzalah, a Jewish emergency response service, teamed up to offer fire-safety tips to the faithful. Some of the advice included basic safety reminders: Come up with a fire escape plan, never leave candles burning unattended, check smoke detectors twice a year.

Like many Jewish holidays, Passover -- which commemorates the Jewish exodus from Egypt -- involves candles and burning as part of religious symbolism and the retelling of the ancient story.

"Every religion has traditions and customs they follow and when following those customs they need to make sure they are doing them in the safest manner," said Miami-Dade Fire spokeswoman Michelle Fayed.

For Passover, observant Jews burn bread, light candles and thoroughly clean their homes, some using a blow torch, to get ready for the holiday. And candles also are lit every Friday night for the Sabbath. The most observant follow the ancient rule of not using electricity for more than 24 hours. That means slow cookers, ovens and hot plates are left on, some set on a timer.

So the risk of fire is always there.

"Safety always needs to come first," said Howard Sickles, a retired deputy fire chief with New York City Fire Department and a paramedic with Hazalah in New York who came to South Florida to speak at the workshop.

Sickles was a first responder at the Brooklyn fire just after midnight March 21. He said there were no smoke detectors near the bedrooms of the old house.

"As I walked up they were pulling the children out," he said. "I have dealt with a lot of tragedy in my career but this had to be one of the worst cases."

Sickles' message was simple: "Safety first."

The workshop gave Sorah Ross some things to think about. Ross, who has six children ages 4 to 15, said the Northeast Miami-Dade home they are renting does not have smoke detectors.

"We are going to get our own and install them right away," she said, adding that fire safety has always been a concern of hers.

"We always wait for the candles to be out before we go to sleep," she said.

Zalman Cohen, director of operations for Hatzalah Miami-Dade, said it's common to hear about kitchen and candle fires. Hatzalah Executive Director Baruch Sandhaus said many fires can be avoided by following safety guidelines.

"You can still follow traditions and be safe," Sandhaus said.

Fayed of Miami-Dade Fire Rescue said the county doesn't keep track of fires caused by hot plates, candles or other holiday rituals, but they do happen. In 2007, a fire that started amid Hanukkah doughnut-making at a Northeast Miami-Dade synagogue caused $100,000 in damage. More than three years ago, a fire in an Aventura condo started when holiday candles ignited curtains.

Cohen said the community needs a reminder on what could happen.

"If one fire could be avoided the whole thing was worth it."

Copyright 2015 - The Miami Herald

 
Texas State Senator Eddie Lucio, Jr has filed legislation to abolish the death penalty in Texas. This is the first time a state senator has ever filed legislation to abolish the death penalty in Texas. It happened because organizations in Texas held the Statewide Texas Lobby Day to Abolish the Death Penalty on March 3 and death row survivors Ron Keine and Sabrina Butler from Witness to Innocence and Scott Cobb of Texas Moratorium Network met with Senator Lucio's general counsel and requested that the Senator file abolition legislation.
Here is a report from the Austin American-Statesman on our successful lobby day, which was widely covered in the media, including the Dallas Morning News, potentially reaching hundreds of thousands of people in Texas with our message.
Last summer, Senator Lucio attended the Democrats Against the Death Penalty caucus at the Texas Democratic Party state convention. The caucus has been held every year since 2004 when it was started by Scott Cobb. The caucus has proven to be an effective method for persuading Texas Democrats to make abolishing the death penalty a higher priority among both elected officials and ordinary people in the Texas Democratic Party.
In the coming weeks, we will be working with Senator Lucio's staff as well as staff of the House sponsor of the abolition bill, to prepare for committee hearings on the abolition bills. When a hearing is held in the Senate Committee on Criminal Justice, it will be the first time ever for a hearing on abolishing the death penalty in Texas. It will be up to the chair of the committee to decide if a hearing is scheduled.
Here are links to the two pieces of legislation filed by Senator Lucio. One is a regular bill (SB 1661) and the other is a proposed constitutional amendment (SJR 54).
 

The Office of Academic Affairs is working to provide accurate and up-to-date information for faculty and researchers about the roll out of the Sunshine Act Open Payment system. There may be times when the most recent information is only available on the CMS website.

 

The Sunshine Act Open Payment data is now available on the CMS website (as of September 30, 2014): http://www.cms.gov/openpayments/index.html

CMS reports that the searchable database includes approximately 4.4 million records of payments (including both identified and de-identified payments). Those payments were made to approximately 546,000 individual physicians and 1360 teaching hospitals, with a total volume of approximately $3.5 billion.

 

WHAT IS THE SUNSHINE ACT OPEN PAYMENTS PROGRAM?
Physician Payment Sunshine Act (“Sunshine Act”) is a provision of the Affordable Care Act. By law, starting in 2014 a publicly available federal website, “Open Payments” will display information about payments and other “transfers of value” (defined below) from manufacturers to individual doctors (defined as M.D., D.O., D.D./D.D.M., D.D.S., D.P.M., O.D. and D.C.P. who are licensed in any state in the U.S., whether or not they are practicingand teaching hospitals be made available to the public. (The Act does not affect faculty and staff members who are not physicians, as defined above.)

According to CMS: “Open Payments is a national disclosure program that promotes transparency by publishing the financial relationships between the medical industry and healthcare providers (physicians and hospitals) on a publicly accessible website developed by CMS.”

Individual physicians will be responsible for checking their information posted on the site and for contacting manufacturers to address any discrepancies.

Detailed information is available on the CMS website http://www.cms.gov/Regulations-and-Guidance/Legislation/National-Physician-Payment-Transparency-Program/Program-Registration.html

WHAT’S NEW? 
According to CMS, "physicians and teaching hospital representatives can register in Open Payments system. The Open Payments review and dispute process began on July 14 and ends September 10, 2014. The review, dispute and correction process allows physicians and teaching hospitals to review and initiate any disputes regarding the data reported about them by applicable manufacturers and applicable GPOs before CMS makes the information public on September 30, 2014."

There will be a 45-day period “following initial availability of the Open Payments system [to] review, dispute, and correct data submitted by industry.”

Once CMS establishes the online portal, physicians will be encouraged to sign-up to receive direct notice when the reports are made available to physicians prior to CMS posting on the public website.

WHAT SHOULD P&S FACULTY DO?
We strongly encourage all of our physicians to register with CMS so as to receive notifications when CMS receives a payment report on the individual.  Physicians will need to register to review their data.

Individuals will be identified using their NPI number, so this information is needed for registration. Please be advised that during registration it is our understanding that you need to have your NPI as well as your taxonomy code(s) (which CMS is calling a specialty code).

Individual physicians will be responsible for reviewing the accuracy of reported data and addressing any discrepancies.

We advise all of our physicians to keep thorough documentation for all outside activities involving industry in case you need it to dispute information posted in the Enterprise Portal. It is unclear for how long CMS will keep open any disputes, so we recommend that you maintain records for at least five years.

After registration, individual physicians can appoint one delegate to monitor records on the CMS website. According to the AAMC, "physicians can appoint a delegate and those delegates must also register and accept their rold before they can review a physicians' data."

KEY DATES
Data Collection: Starting on August 1, 2013, manufacturers began collecting information and providing CMS information about such payments, including the amount and purpose.

Registration for the Open Payments Website: Beginning June 1, 2014. Columbia physicians may want to register promptly so that they can review these data as soon as it becomes available.

Previewing of Individual Information: Began on July 14, 2014

Dates for Dispute of Individual Information: Timeframes for dispute are limited by CMS. Information on industry payments to individuals is now available (as of July 14, 2014). According to CMS, one has until September 10, 2014 (45-days from release) to “review, dispute, and correct data submitted by industry.”

Date of Release: CMS has announced that most of the data will be released on the public website on September 30, 2014, and once annually thereafter. The initial data release will cover industry payments from August 1, 2013 through December 31, 2013. According to the AAMC, "historic data will continue to be available indefinitely."

WHOSE INFORMATION DOES IT LIST?
Only MDs and other providers, such as those with a DO or DDS. Posting will NOT include residents, fellows or other providers, such as NPs.

Reviewing: Physicians will need to register with the site to preview their own information and, if needed, work with manufacturers to correct payment information.

Disputes: Physicians are responsible for correcting their own information, if needed. See below.

A user guide from CMS is available at http://www.cms.gov/Regulations-and-Guidance/Legislation/National-Physician-Payment-Transparency-Program/Downloads/Open-Payments-User-Guide-%5BJuly-2014%5D.pdf

Please note, there have been reports of problems reviewing individual’s information. Open Payments portal website is managed by CMS. For problems, please reach out to CMS directly by email to  This e-mail address is being protected from spambots. You need JavaScript enabled to view it or by phone at 855-326-8366.

WHAT INFORMATION WILL THE FEDERAL WEBSITE CONTAIN?
Payments to individuals will be listed by the physician’s name.Payments will not be listed by the physician’s place of employment or appointment. Sponsored research will be listed by institution and will name individual PIs, also possibly investigators (TBD).

Reporting: Payments must be reported by industry to the Centers for Medicare and Medicaid Services (CMS). Information posted will include detailed information about payments and other “transfers of value” worth over $10 from manufacturers to physicians at teaching hospitals.

Categories of Payment and Transfers of Value : Manufacturers will cover companies that manufacture drugs, devices, biologicals or medical supplies and are required to provide a category for the services rendered. There are 14 categories of payment and transfers of value to physicians including: consulting fees, compensation for speaking or other services, travel, food, entertainment, gifts, honoraria, royalties or licenses, charitable contributions, education, current or prospective ownership or investment interest, etc. (Information about research grant reporting is available below.) According to AAMC, "any payment or transfer of value that does not fit into one of the other categories noted above is considered a gift... Examples might include office supplies, journal reprints, textbooks, editorial services, and scientific posters, if they did not fit into another category."

Types of Payment: Manufacturers are required to categorize how the recipient received the payment (such as cash or cash equivalent, in-kind items or services, or stock, stock option(s), or any other ownership interest, dividend, profit, or other return on investment).

Indirect Payments: Manufacturers must collect and provide information about indirect payments as well as payments made directly to physicians. For example, if a physician is paid indirectly through a third party (e.g., contract research organization, travel agency), the payment will be listed as a transfer from the manufacturer to the physician.

Research support: Physicians who are investigators on research supported by manufacturers will be listed in connection with the research payments to the institution, even if payments for research are made to the institution. These payments will be reported on a separate research reporting section of the web site.

Ownership: Manufacturers as well as GPOs are required to report on interests held by physicians and their immediate family members. Ownership or investment interests in publicly traded security and mutual funds are excluded.

WHAT INFORMATION WILL BE EXCLUDED?
Payments to physicians for serving as faculty or speakers for accredited Continuing Medical Education activities are generally not included. Exclusions also include, buffet meals, product samples, educational materials for patients, short-term loaned medical devices, items worth less than $10.

Additional exclusions are listed in the FAQs in the AMA Toolkit for Physician Financial Transparency Reports (Sunshine Act).

HOW TO PRE-REVIEW YOUR INFORMATION?
CMS has announced that information on industry payments to individuals is now available (as of July 14, 2014). According to CMS, one has until September 10, 2014 (45-days from release) to “review, dispute, and correct data submitted by industry.”

Physicians will need to register with the site to preview their information and, if needed, work with manufacturers to correct payment information.

Please note, you must register before you can review your information. According to the AAMC, "physicians have no reporting obligations under this regulation but should consider reviewing the reported information before it becomes public."

You will only be able to view what has been reported about you if you have registered. If you haven’t already registered, gaining access to your information is a two-step process. You can register at https://portal.cms.gov/wps/portal/unauthportal/home/.

Phase 1 requires identify verification in the CMS Enterprise Identity Management System (EIDM). Initial registration for the Open Payments system became available on June 1, 2014 and is at https://portal.cms.gov/wps/portal/unauthportal/registration

Phase 2 enables physicians to select access to the Open Payments System. Registration for Phase 2 will be available in mid-July. Registration for phase 2 became available on July 14, 2014 and is at https://portal.cms.gov/wps/portal/unauthportal/registration

HOW TO DISPUTE YOUR PREVIEWED INFORMATION?
Individual physicians will be responsible for contacting manufacturers to address any discrepancies.

CMS has established specific deadlines for the processes of reviewing, disputing and correcting individuals’ information.

Information about and dates for the review, dispute and correction processes are available at http://www.cms.gov/Regulations-and-Guidance/Legislation/National-Physician-Payment-Transparency-Program/Dispute-and-Resolution.html

According to CMS, “applicable manufacturers and applicable GPOs should work with the disputing physician or teaching hospital to correct disputed data. Applicable manufacturers or applicable [business] must send CMS a revised report to make the corrections and re-attest to the updated data.”

CMS has stated that it “will not mediate any dispute.”

Once CMS establishes the online portal, physicians will be encouraged to sign-up to receive direct notice when the reports are made available to physicians prior to CMS posting on the public website.

CMS is providing a free mobile app to help physicians keep track of, store, and view financial payments and other transfers of value from applicable manufacturers. The app is available at https://itunes.apple.com/us/app/open-payments-mobile-for-physicians/id667567467?mt=8

WANT MORE INFORMATION?
More detailed information about the Sunshine Act is available from the Centers for Medicare and Medicaid (CMS) Services: http://www.cms.gov/Regulations-and-Guidance/Legislation/National-Physician-payment-Transparency-Program/index.html

To receive updates from CMS, you may register for the listserv by emailing  This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Faculty physicians who have questions about faculty disclosure requirements may contact the P&S Office of Academic Affairs (http://www.cumc.columbia.edu/faculty) or the CU Office of Research Compliance and Training (http://www.columbia.edu/cu/compliance/docs/conflict_interest/index.html).

 

The Health Insurance Portability and Accountability Act (HIPAA) is a set of complex federal rules and regulations that govern how medical institutions and their business associates treat your private health information, known as "PHI." Penalties for HIPAA violations can be substantial, ranging from fines to criminal prosecution and imprisonment.

Penalties for Violations

Claims of HIPAA violations are investigated by the Office of Civil Rights (OCR), a division of the U.S. Department of Labor. The two most important HIPAA sections addressing violations are Federal Public Law Sections 104-191 and 1177.

Under HIPAA Law Section 104-191, "General Penalty for Failure to Comply with Requirements and Standards," the U.S. Department of Labor can impose fines beginning at $100 on an individual for each day the violation continues, up to a maximum of $25,000 per year.

Under HIPAA Law Section 1177, "Wrongful Disclosure of Individually Identifiable Health Information," the U.S. Department of Labor can impose fines beginning at $50,000 and/or up to a year in jail, all the way up to a fine of $250,000 and/or up to ten years in jail for an individual. Under HIPAA rules, an "individual" can be a medical entity, institution, or an executive of either.

HIPAA applies to the following four medical entities:

Health plan organizations

Health plans include HMOs, PPOs, Medicaid, Medicare, and other individuals or medical groups that pay the cost of medical care for their insured.

Health care clearinghouses

Health care clearinghouses include individuals or companies which are paid to process individuals' personal health information (PHI). This includes billing service companies, health information systems, transaction facilitators, and other entities that handle PHI.

Health care providers

Health care providers include any person or organization that charges patients for providing treatment. This includes medical doctors, osteopathic doctors, dentists, chiropractors, nurses, lab technicians, and medical administrators supporting these providers.

Business associates

Business associates are extensions of the previous three groups. Examples of business associates are CPAs whose accounting services include a review of PHI, attorneys whose legal services include access to PHI, and pharmacists with similar access to PHI.

Why We Need HIPAA Laws

HIPAA exists for two main reasons, to ensure you maintain health insurance when changing jobs, and to protect the privacy of your personal health information. Let's discuss these protections, known as Title I and Title II.

Title I

Title one ensures that if you change jobs, you can maintain your health insurance without being penalized.

In the past, people with health problems were afraid if they left their jobs or were fired, they wouldn't be able to get health insurance with their new employer, or if they were able to get insurance, their pre-existing condition would be excluded.

This meant if you started your new job with a pre-existing injury or illness, your new HMO or PPO could exclude coverage for that prior medical condition. Even if you were to find another health insurance company to cover your pre-existing condition, the premiums would be extremely high.

Today, health insurance companies cannot refuse to provide medical coverage based on a pre-existing condition. Nor can they charge higher premiums based on your condition.

Example: Pre-existing Condition Violation

Gerard worked for the last twenty years as a driver for a local delivery company, and had excellent coverage under his HMO. About ten years ago Gerard was diagnosed with cardio-myopathy, a disease of the heart that can be controlled by taking several expensive medications. Gerard's HMO covered all his medical bills related to his cardio-myopathy.

Gerard's employer went out of business, but he was able to get full-time work with another company that provided an excellent health insurance package through an HMO. A month after beginning his new job, Gerard received a letter from the HMO stating his pre-existing heart condition was excluded from coverage.

Gerard filed a complaint with the Office of Civil Rights (OCR). The OCR found the HMO to be in direct violation of HIPAA. They were fined $50,000, and ordered to immediately cover all the costs of treatment for Gerard's cardio-myopathy.

Title II

Title two protects your personal health information from being released to third parties without your express consent.

HIPAA's "Privacy Rule" covers a person's private health information, which includes medical bills, claim information, prescriptions, lab results, medical opinions, and all other protected forms of PHI. Under this section, your PHI cannot be distributed without your written authorization.

It's important to know the difference between patient consent and patient authorization. Consent generally means giving permission to have a medical procedure performed, or for medical information to be shared with doctors during treatment. Authorization generally means giving permission to have one's PHI distributed to third parties, other than the original medical facility providing treatment.

To be a legitimate authorization, there must be a written document, signed by the patient, giving the named medical facility permission to use specific PHI for matters other than medical treatment, payment, or surgeries. The authorization applies when a patient's PHI will be disclosed to a third party, such as an insurance company, billing company, or even another doctor.

The patient authorization must include a description of the specific PHI to be disclosed, the person or company to whom the PHI will be sent, an expiration date for the authorization, and the purpose of the disclosure. Disclosure of any portion of the patient's PHI without authorization is a potential violation of HIPAA laws.

Example 1: Violation of HIPAA's Privacy Rule

Susan went to her family doctor complaining of bloating, weight loss, jaundice, dark urine, and nausea. After several tests, her physician told her she was suffering from pancreatic cancer. Several days later, Dave called Susan's physician's office, identified himself as her husband, and asked about Susan's test results. The receptionist told Dave his wife had been diagnosed with advanced pancreatic cancer.

This is a clear case of a violation of HIPAA's Privacy Rule, even though Dave was Susan's husband. The receptionist was prohibited from disclosing that information to Dave. Her breach of confidentiality may subject her and the doctor to HIPAA penalties.

Example 2: Violation of HIPAA's Privacy Rule

Amy was going through a medical malpractice lawsuit against her doctor, and her attorney was preparing to take the depositions of the doctor and his staff. The doctor's attorney sent a letter to Amy's former doctor demanding he turn over her medical records, including all of the doctor's notes regarding her predilection for opiate abuse, and repeated threats to sue him for medical malpractice.

Believing the attorney's letter was "official," the doctor advised his staff to make copies of all of Amy's medical records and forward them to the attorney. He did so without contacting Amy or obtaining her express written authorization.

While in trial, the doctor's attorney introduced into evidence Amy's prior medical records, especially the doctor's notes about her "drug seeking behavior," and repeated threats of suing for medical malpractice. As a result, Amy's case was doomed, and the jury ruled in favor of the doctor. Amy's former doctor violated HIPAA's Privacy Rule, and this breach of confidentiality subjects him to HIPAA fines and penalties.

Legal Recourse for HIPAA Rights Violations

Contrary to what many people believe, you cannot sue a medical entity for violating your HIPAA rights. Your only recourse against a HIPAA violation is to file a complaint with the Department of Labor's Office of Civil Rights, after which an investigator will investigate your allegations and determine if a HIPAA violation took place. If so, the violator may be fined or subject to criminal prosecution.

To report a HIPAA violation, go to this webpage. There you can download the form to file your complaint by written mail, email, or via fax. Provide the name(s) of the medical entity that violated your HIPAA rights, and write a brief explanation of the facts surrounding the violation, including the evidence you having proving the violation occurred.

Private Legal Remedies

If the violation resulted in damages, meaning you suffered some kind of verifiable financial loss, you may have a civil claim against the individual who violated your HIPAA rights.

Example: Monetary Damages from HIPAA Violation

Jane was interviewing for a new job, and had already been selected for the position. She was negotiating the terms of her employment contract, when a background check turned up her family doctor's contact information.

The background investigator then contacted Jane's doctor, saying he was authorized to obtain copies of her medical records for her new employer. The doctor's office released Jane's records, which revealed she was being treated for HIV. Jane never authorized this information to be disclosed to any third parties, especially the background check company.

Days after the information was released, Jane's offer of employment was suddenly withdrawn, citing another candidate as having better qualifications.

In this instance, Jane could sue her doctor for the damages caused by his HIPAA violation. She'd likely have the basis of a "tortious interference with contract" case. She'd need to prove that the withdrawal of the employment offer was directly related to the disclosure of her medical records. Jane's damages would be the loss of income and benefits she would have been entitled to if she'd been hired.

Further, if after the OCR investigated her complaint, they found the doctor to have violated HIPAA laws, Jane could use that finding as strong evidence in the trial. Additionally, Jane could contact the State Medical Board and file a complaint of unethical practice.

If an unauthorized release of your PHI resulted in financial damages, you should consult an attorney with extensive experience in HIPAA law. In some cases, depending on your damages, an attorney may accept your case on a contingency fee basis, meaning you won't have to pay any money until, and unless the attorney settles your case or wins it at trial.

 
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