Martin Dolan spoke about the legal responsibility of manufacturers, distributors, and sellers of inherently hazardous equipment to provide adequate safety warnings to consumers and the potential liability they face when they fail to do so.

In this case, the failure of a snowblower manufacturer to include adequate safety warnings
about possible injuries when the product’s engine was in idle caused serious injury to a 14-year-old boy.

- Via NBC5 WMAQ Channel 5

Those allegations, and another leveled recently at a Baltimore-area hospital, have highlighted an arcane record-keeping practice called “upcoding.”

The practice — giving a patient a more severe diagnosis to receive higher reimbursement — is a target in the federal government’s push to root out billions of dollars a year in health care fraud. And investigators are using increasingly sophisticated software to detect questionable billing patterns in Maryland and across the country.

The U.S. Justice Department has accused a rehabilitation hospital owned by the University of Maryland Medical System of purposely misdiagnosing patients with severe cases of malnutrition and is suing for $8.1 million. The medical system denies the allegations and is fighting the case.

As the government uses more high-tech tools to identify problems, defendants such as the University of Maryland Medical System say unusual coding patterns are sometimes simply mistakes or misunderstandings, rather than fraud.

The lawsuit filed in October accused Kernan Orthopedics and Rehabilitation of manipulating its computerized billing system to make it look like patients had a severe form of malnutrition called kwashiorkor. This enabled the hospital to get bigger payouts fromMedicare and other government health programs, the lawsuit said.

But the medical system’s CEO, Robert Chrencik, said in his first comments about the case that none of the patients’ records showed a diagnosis of kwashiorkor. Instead, he said the disease shares a computer coding with another nutritional disorder, “protein deficiency,” which some Kernan patients do have.

He said a recent change in the coding system made it appear that the number of patients with the nutritional deficiency had drastically increased at Kernan, when it hadn’t. The medical system has asked the court to dismiss the case.

“We’re not coding things that weren’t coded before,” Chrencik said. “It looked like we started coding nutritional deficits. It looked like we had this huge uptick, but in reality they had always been there.”

The decision of who is right will ultimately be made in U.S. District Court, but the case brings up an issue that has for years contributed to billions of dollars a year in health care fraud. The Department of Justice recovered $5.6 billion in fraudulent payouts last year, and more than $2.9 billion was health care-related.

The state Health Services Cost Review Commission, which sets hospital rates in Maryland, also made the severity of an illness more important when it changed its rules in 2005, tying higher reimbursement to more severe secondary diseases.

Upcoding made headlines in the 1990s, when many hospitals were accused of profiting from the practice. The most visible case was that of Columbia/HCA, a national chain sued by the federal government for Medicare fraud that included upcoding. The hospital chain, which eventually changed its name to HCA-The Healthcare Co., settled in 2000 for $840 million, which was the largest settlement in history at the time.

It is unclear how much upcoding contributes to Medicare fraud today, because it is not tracked separately, but government officials said it is still an issue.

Thomas V. Russell, the inspector general for the Maryland Department of Health and Mental Hygiene, said the state does routine data monitoring of Medicare payment records to identify “outliers or billing patterns that are out of sorts.” Federal “Medicare Strike Force” teams also monitor Medicare data in several cities and brought to light $1 billion in fraud cases last year.

The state also gets tips from hot lines and former employees who have been encouraged by new laws that reward whistle-blowers. The False Claims Act allows anyone with knowledge of a false Medicaid or Medicare claim to file a lawsuit and share a percentage of damages. Maryland passed its version of the legislation last year.

“We are being given more tools by the federal government to pursue this,” Russell said. “Every day there are more software updates that come out that will perform data analysis to kick out outliers that may identify problems with upcoding and billing issues.”

The case against Clinton-based Greater Metropolitan Orthopaedics Institute was settled last year for $2.5 million under the False Claims Act. The settlement resolved allegations that over a four-year period beginning in 2001 doctors billed for patients they never saw or services that weren’t in patient medical records. The institute also entered into a Corporate Integrity Agreement with the Department of Health and Human Services, according to federal prosecutors.

In Connecticut, Masonicare Health Center agreed last year to pay $447,776 to settle allegations over the way it billed for the use of the drug Lupron to treat prostate cancer. The government alleged that the health center billed for a higher dosage of Lupron — one that is normally used to treat fibroids and endometriosis in women, and that has a higher reimbursement. The company did not admit wrongdoing in the settlement.

California-based Prime Healthcare Services, meanwhile, is being investigated by state and federal authorities for possible upcoding by diagnosing elderly patients for septicemia blood infections to get higher Medicare reimbursements, according to news reports. The company denies the allegations.

- Via The Baltimore Sun

The teleconference will be held on Thursday, January 19, 2012 at 12:00pm PT / 1:00 pm MT / 2:00 pm CT / 3:00 ET and will last 60 minutes. Not a committee member? ABA YLD members can join for FREE. The teleconference will by complimentary for ABA YLD members. 

Click here to REGISTER NOW

This teleconference will discuss why it is important for minority attorneys to be involved in pro bono work and explore ways for minority attorneys to get more involved in pro bono. The speakers will include an attorney who spends 100% of her time doing pro bono work on behalf of her firm, as well as public interest attorneys working with volunteer/pro bono attorneys who will speak about the importance of volunteer minority attorneys.

Dolan Law’s own Karen Munoz will be moderating along with Kenya A. Jenkins-Wright of Green and Letts. The speakers will include Mara Block of Legal Assistance Foundation, Stacey Wang of Holland & Knight in Los Angeles, CA, Richard M. Wheelock of Legal Assistance Foundation, and Cheryl Zalenski of ABA Center for Pro Bono.

A complimentary download of this program and other committee programs will be available to ABA members via the committee webpage.

In a federal lawsuit filed Monday, Joanne Chavez Buchanan claims that the district’s stated reason for firing her, to save money, was a pretext, and that she was let go in retaliation for questioning hiring practices.

Buchanan contends that she was instructed to sidestep the district’s hiring protocol in filling seasonal jobs for the summer internship program and in replacing a receptionist. The lawsuit names the district and district board president Jim Hickey as defendants.

In May, Buchanan was given a list of seven people to hire for the internship program for students in the district who are 18 or older, according to the lawsuit.

It says the list included the two teenage sons of Cook County Commissioner Elizabeth Gorman (R-Orland Park), neither of whom was yet 18.

When Buchanan objected to hiring the boys because of their age and the apparent political influence, Hickey ordered her to hire them anyway, the suit says.

Gorman backed a political slate, Fiscal Voices for Orland, that ran candidates for village trustee in Orland Park as well as two successful candidates for the fire district board, Blair Rhode and Christopher Evoy. Gorman administered the oath of office to Rhode and Evoy when they were sworn in last spring.

Gorman on Monday called the lawsuit “frivolous” and said she believed her sons met the criteria for the internship program. Gorman is not a defendant in the complaint.

“She’s (Buchanan) trying to grab some attention and grab some of the taxpayers’ money,” Gorman said.

The lawsuit says Buchanan, who had been with the district since 2008, was fired June 15 by Acting Fire Chief Ray Kay and the district’s attorney, James Roche, who came to her office. When she asked why, Buchanan was told the board wanted to reduce costs and cut salaries, according to the suit.

It says Buchanan offered to take a pay cut but was told by Roche that wasn’t an option and a replacement had been hired.

The district’s current HR director submitted her resume in May — shortly after Rhode and Evoy were sworn in and Hickey was named board president — and completed an application for the job more than a week prior to Buchanan’s firing, according to district records.

Buchanan’s attorney, Martin Dolan, said his client’s allegations show that the fire district’s hiring is “classic pay-to-play.”

“Non-politically connected college kids and taxpayers lose out,” and it “erodes the public trust in government,” Dolan said.

- Via The Southtown Star

Police and civilian detention aides were accused in two separate lawsuits of ignoring obvious signs of medical distress that resulted in the deaths of people held in custody.

“It’s clearly indicative of a pattern that is very troubling,” said Ald. Edward Burke, 14th, a former police officer and attorney. Burke is chairman of the Finance Committee, which recommended the settlements be approved at Wednesday’s full City Council meeting. 

“In the ordinary scheme of things, from just a human perspective, people should be treated with compassion and humanity,” Burke said. “But from a more practical sense, the taxpayers are now suffering to the extent of millions of dollars because these officers in detention facilities have ignored what appears to be clear signs of people in distress.”

Burke also expressed concerns after his committee recommended settling two other police cases. In one, police were accused of attempting to railroad a U.S. war veteran who was acquitted but nevertheless lost his new job after two months behind bars. In the other, police allegedly stepped on the head of a quadriplegic man after beating and kicking him.

The most costly case, which would be settled for more than $2 million, involved the death of Patricia Cobige in a lockup after her arrest June 10, 2006, on heroin-possession charges. A cellmate testified that Cobige, 46, repeatedly complained of feeling ill and requested help but received none, First Assistant Corporation Counsel Leslie Darling said.

Her death from a pre-existing heart condition at the Grand Central District police lockup came eight hours after Cook County sheriff’s deputies would not process her for a court appearance because she was too ill to comply with simple commands, Darling said.

A jury in February 2010 awarded her son $5 million, but the city appealed the matter and was able to reduce the settlement, Darling said.

The committee recommended a $1 million settlement for the sister of Rafe McMullan Jr., a 52-year-old man arrested on criminal trespassing charges who died in the central detention unit Nov. 12, 2008. A $3 million payout had been sought in the case, Darling said.

Witnesses from the lockup were prepared to testify that McMullan screamed and yelled for medical help but received none, Darling said. When he was found unresponsive on the cell floor, he had been dead for at least two hours, she said.

Aldermen also recommended settling for $560,000 a lawsuit filed by Iraq War veteran Frank Craig, who was “mistakenly pursued and arrested” for armed robbery and later acquitted, Darling said. The federal judge in Craig’s civil lawsuit concluded that a Chicago police detective “falsely testified before a grand jury,” Darling said.

“Mr. Craig was held in jail for over two months, causing him to lose a job at the state of Illinois that he was about to start the day after his arrest, which would have provided full benefits to his family,” Darling said. He was “unable to find similar paying work or benefits for his family,” she said.

Aldermen also recommended paying out $290,000 to Daniel and Karina Casares. Officers in October 2006 pulled Daniel Casares, a 26-year-old quadriplegic, from a vehicle and punched and kicked him, according to witnesses cited in the lawsuit.

The officers also stepped on his head and arrested and handcuffed his pregnant sister Karina when she tried to intervene, they alleged.

“We look at each case individually and defend each case individually,” Darling said. “We are not saying there is any pattern here.”

- Via Chicago Tribune

Dolan Law represents the three victims in a lawsuit filed against St. Leonard’s, the psychologists who evaluated the offender for release after serving a thirty year sentence, and his parole agent.

Read the full story here.

“They ought to be out there talking about what they think the system should look like,” said Michael Franc, a vice president for the conservative Heritage Foundation.

West Des Moines Republican Ed Brown is no fan of President Barack Obama’s Affordable Care Act, but he says it was a response to Americans’ real concerns about the future of health care. “Those concerns will remain no matter who gets elected,” he said.

Brown is chief executive officer of the Iowa Clinic, one of the state’s largest physicians’ groups. He’s a careful follower of health care policy debates, and he recently decided to back former House Speaker Newt Gingrich after wavering among several presidential candidates.

Brown sees the economy and the budget deficit crowding out other important debate topics, including how to keep Medicare and Medicaid costs under control and to prevent Americans from losing private coverage. “Health care isn’t close to being the center of the debate in this election … but once you’re in office it’s going to matter a lot,” he said. He added that he believes measures such as raising the age for Medicare eligibility will be necessary.

Henry Aaron, a health policy expert for the Brookings Institution, agreed that a Republican president would need a specific plan to deal with the fast-rising costs of care and insurance. “If you toss out the Affordable Care Act, the problem is now yours,” he said. “Anything bad that happens will be laid at your feet.”

Aaron said the Republican candidates’ proposals don’t have the same scope as Obama’s. For example, he said, he supports reforming medical-malpractice laws to prevent pointless lawsuits, as most of the GOP candidates do, but he and many other scholars doubt such improvements would go far in cutting overall health care costs. He also said proposals to let Americans buy insurance policies across state lines could lead to somewhat lower prices for some people, but they wouldn’t do much to solve the broader problems.

Aaron also noted that Obama’s health reform program includes several measures supported in the past by conservative thinkers. Those include limits on tax advantages for employers who buy extensive insurance policies for their workers. Many economists have argued that such tax breaks distort the market by encouraging people to have so much insurance that they never directly face any of the costs of their health care decisions. If the Affordable Care Act gets tossed out, the new tax limits will go with it, Aaron said.

One of the most controversial aspects of Obama’s reforms is a requirement that nearly all Americans have health insurance by 2014. Franc noted that several conservative voices, including the Heritage Foundation and candidates Newt Gingrich and Mitt Romney, supported that idea in the past. They saw it as an alternative to a single-payer, government-run health system.

The foundation and Gingrich stepped away from the insurance mandate idea, which now is derided by many conservatives as an assault on freedom. When he was Massachusetts governor, Romney helped push through a 2006 plan requiring nearly everyone in his state to have insurance. He routinely defends the move as a good choice for Massachusetts, but says the federal government does not have the constitutional power to force such a requirement on everyone.

Iowa Rep. Renee Schulte, a Cedar Rapids Republican who is co-chairwoman of Romney’s Iowa campaign, said she thinks many voters will understand his reasoning on the issue. Schulte, who is active on health care issues at the Statehouse, said she and many other Iowans would resist such an idea here. “I can’t say I loved the plan in Massachusetts, but I appreciate the fact that he tried something,” she said of Romney, adding that he had to work with a Democratic legislature.

Schulte said the health care issue has been crowded out of the national debate by overwhelming concerns for the economy and the budget deficit, but she said the fast-rising costs of insurance and Medicaid and Medicare compound both of those problems and must be dealt with. She expects the issue to get more play as the Republican field narrows and each remaining candidate receives more time to speak.

State Rep. Linda Upmeyer, a Garner Republican who is the House majority leader and state chairwoman of Gingrich’s campaign, said Romney’s Massachusetts health plan probably isn’t receiving as much attention lately because it has been hashed over thoroughly.

Upmeyer, a nurse practitioner long involved in health care issues in the House, predicted the Republican presidential candidates would find a receptive audience by continuing to stress that many health care problems are best solved by states instead of the federal government.

All of the Republicans promise to reverse Obama’s health care programs, but they would need help from Congress to scrap it altogether.

Franc, the Heritage Foundation expert, said to fully junk the Obama measures, Republicans would have to win the presidency, retain their House majority and probably gain control of the Senate.

Many bills require 60 votes to move ahead in the 100-seat Senate, but Franc said that shouldn’t be necessary to repeal much of the health care law. The 60-vote level is needed to cut off debate and take a final vote on many kinds of bills, but Franc said senators could invoke a maneuver known as reconciliation to pass a bill with a bare majority of senators. In fact, he said, Republicans could do so with only 50 senators and the vice president as a tie-breaker.

Reconciliation can only be used for bills related to the budget, but Franc said many aspects of the health reform program could be considered applicable. For example, he said, Congress could vote to cut financing for the scheduled expansion of the Medicaid program and for creation of health insurance exchanges, which would be government-run electronic marketplaces on which Americans could buy private policies.

-Via The DesMoines Register

Reuters (11/30, Keiper) added that the report’s findings were put online and will be featured in the January 2012 issue of Consumer Reports magazine

Janice D’Arcy wrote in a Washington Post (11/30) blog posting, “Given that arsenic can be organic and harmless, or inorganic and dangerous, perhaps the most troubling finding is that most of the arsenic found in the juice was inorganic.” She noted that Consumer Reports’ parent, Consumers Union, “is suggesting that parents restrict juice consumption to children up to 6 years old to no more than six ounces per day. For older children, it recommends no more than eight to 12 ounces a day.”

HealthDay (11/30, Gardner) reported that inorganic arsenic is “known to cause bladder, lung and skin cancer. It can also up the risk of heart disease and type 2 diabetes, and some reports have stated that arsenic exposure can affect brain development in children.”

Jeannine Stein wrote in a Los Angeles Times (11/30) blog posting that the Consumer Reports study “comes just months after television host Dr. Mehmet Oz proclaimed results from his own investigation showed that arsenic levels in apple juice were unhealthful. The Food and Drug Administration claimed Oz’s statistics were faulty and said juice was safe to drink. Apple juice contains a certain amount of organic arsenic, and what Oz found, they said, represented the total amount of arsenic and wasn’t an accurate reading.” It adds that, in light of the Consumer Report study, “Oz may feel vindicated.”

-Via American Association for Justice News Brief

-Via American Association for Justice News Brief

“Nursing homes should be held accountable for inappropriately dispensing antipsychotic” medications “for Medicare beneficiaries and pay back the Part D program for those misused medicines, Department of Health and Human Services Inspector General Daniel Levinson said Wednesday,” CQ (11/30, Bristol, Subscription Publication) reported. “The Centers for Medicare and Medicaid Services (CMS) is emphasizing non-pharmacological interventions for patients who did not have a diagnosis of psychosis or might not be candidates for the drugs.” Patrick Conway, chief medical officer and director for the CMS Office of Clinical Standards and Quality, stated that “in addition to improving education for providers, prescribers and patients’ families, the agency is strengthening current rules and eliminating conflicts of interest that may influence prescribing.”

Bloomberg News (11/30, Wayne) reported, “Medicare improperly paid about $116 million in the first half of 2007 for prescriptions filled in nursing homes for a class of drugs called atypical anti-psychotics, Daniel Levinson told the Senate Committee on Aging in a hearing today.” The “anti-psychotics include AstraZeneca Plc (AZN)’s Seroquel and Eli Lilly & Co. (LLY)’s Zyprexa.”

- Via American Association for Justice News Brief