1. LABOR BOARD ADDRESSES WHEN CHARGE NURSES ARE SUPERVISORS-On October 3, 2006, the National Labor Relations Board (NLRB or Board) released a series of cases holding that certain charge nurses may be considered supervisors under the National Labor Relations Act (NLRA or Act), thereby removing them from the protections of the Act. In its 2001 NLRB v. Kentucky River Community Care decision, the U.S. Supreme Court criticized the NLRB for its interpretation of the term “independent judgment” contained in Section 2(11) of the NLRA. With its trio of cases released this week, the Board reinterpreted the term “independent judgment” along with the terms “assign” and “responsibly to direct” for the purposes of determining which employees are statutory “supervisors.” While the decisions are arguably more pro-employer than prior Board decisions, the Board remained steadfastly committed to reviewing these issues on a case-by-case basis. Read full article. Reporters, Tom Wilson, 713.758.2042 or twilson@velaw.com or Sean Becker at 713.758.2646 or sbecker@velaw.com. 2. FEDERAL DISTRICT COURT CERTIFIES CLASS TO CHALLENGE MEDICAID CITIZENSHIP DOCUMENTATION REQUIREMENTS-In Bell v. Leavitt, a federal district court in Illinois recently allowed class certification for Medicaid applicants or recipients whose eligibility is derived from Foster Care and Adoption Assistance under Title IV-E of the Social Security Act (Title IV-E Adoptees) in an action challenging the interim final regulations requiring states to document the citizenship of certain Medicaid applicants. The regulations, which were mandated by the Deficit Reduction Act of 2005 (DRA) and issued by the Department of Health and Human Services (DHHS) on July 6, 2006, set forth documentation requirements for Medicaid applicants that are required to attest to U.S. citizenship in order to establish eligibility. The court found that there was a substantial likelihood of success on the merits of the claim to the extent that the interim final regulations appear to conflict with the DRA as applied to Title IV-E Adoptees. Specifically, the DRA provides that Title IV-E Adoptees are not required to attest to U.S. citizenship to establish their eligibility for Medicaid—the only group to whom the new documentation requirement applies. Yet, the regulations require Title IV-E Adoptees to comply with such requirements. Notably, the court denied class certification for other claims by plaintiffs challenging the interim final regulations on due process and equal protection grounds based on a failure to show redressability. Because the injunction sought by such plaintiffs to bar enforcement of the regulations would not invalidate the documentation requirement in the DRA, the court noted that granting the injunction would not redress the plaintiffs’ injuries and would actually make the plaintiffs’ task more onerous because the universe of acceptable documentation set forth in the DRA is much smaller than that set forth in the regulations. Reporter, Amanda Borichevsky, Austin, 512.542. 8844 or aborichevsky@velaw.com.
3. PHYSICIAN GROUP TO PAY $25 MILLION IN IMPROPER BILLING SETTLEMENT -A joint announcement by publicly-traded Pediatrix Medical Group and U.S. attorneys on September 21, 2006 detailed a $25 million settlement agreement reached after investigations uncovered a nearly four year pattern of “upcoded” reimbursement claims which represented that health care providers were entitled to payments for more expensive treatment than they actually provided. From January 1996 through December 1999, the Florida-based neonatologist practice had allegedly billed the government for critical care services when in fact the infants were not critically ill, the U.S. attorney for the District of Maryland said. The original action was filed by whistleblower Daniel M. Hall, a board-certified neonatologist, who will receive almost $1.6 million (roughly 6.4%) out of the federal recovery. The settlement also provides for $9.5 million to be shared among the thirty-two states in which Pediatrix provides services. As part of the settlement, Pediatrix will enter into a five-year corporate integrity agreement (CIA) with the Office of Inspector General of the Department of Health and Human Services. No exclusion from Medicaid or other Federal health care programs was included in the terms of settlement. Reporter, Amanda Borichevsky, Austin, 512.542. 8844 or aborichevsky@velaw.com .
4. U.S. SUPREME COURT WILL NOT REVIEW HIPAA RULE-On October 2, in Citizens for Health v. Leavitt, the United States Supreme Court declined to review a lower court decision upholding the “routine use” exception to the medical privacy rule established under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The HIPAA rule at issue authorizes health care organizations to use and disclose health information for “treatment, payment, and health care operations” without patient consent. Citizens for Health argued that this type of use violated the Fifth and First Amendments. The United States Court of Appeals for the Third Circuit disagreed and held that “routine use” did not violate patients’ constitutional rights. In reaching that decision, the Third Circuit found that the rule did not make the health care entities “state actors.” The Third Circuit decided Leavitt last year. The high court’s decision to not review Leavitt means that the decision will remain binding in Delaware, New Jersey, Pennsylvania, and the Virgin Islands. Reporter, Jennifer Sheffield, Austin, 512.542.8647 or jsheffield@velaw.com. To view this week's Health Briefs (a listing of Federal and Texas regulations affecting health care), follow this link to visit our website. For more information about Vinson & Elkins' HIPAA Consortium, please contact Brenda Strama at 512.542.8544 or bstrama@velaw.com. **************************************************
Editor: J.D. Epstein jepstein@velaw.com
Issue Editor: Amanda Borichevsky aborichevsky@velaw.com |
