Law Commons^™

Snitches Get Stitches: An Analysis Of The Eighth Circuit’S But-For Causation Requirement In False Claims Act Litigation “Resulting From” Anti-Kickback Violations, Travis R. Linn

Arkansas Law Review

Following the expansion of Social Security in the 1960s, Congress enacted the Anti-Kickback Statute or AKS in 1972 to ensure that items and services charged to Medicaid were only those necessary to the beneficiary’s health. Part II of this Note will analyze three pieces of legislation and Congress’s reasons for passing them: the FCA, the AKS, and a 2010 amendment to the AKS passed under the Affordable Care Act that connects the two. Part III will analyze the Third and Eighth Circuits’ conflicting interpretations of the 2010 amendment and why the Eighth Circuit’s commitment to textualism has disregarded Congress’s reasons …

The Battle For Medicare, Isaac D. Buck

Saint Louis University Journal of Health Law & Policy

America is aging. From 2019 to 2060, the total population of Americans over sixty-five will grow from fifty-four million to ninety-five million. Of all Americans, sixteen percent were aged sixty-five and older in 2019; nearly twenty-two percent are projected to be in this age group by 2040. This shift will put unprecedented pressure on the Medicare program. Its enrollment is already in the midst of an unparalleled boom, growing from forty-eight million in 2010 to eighty-six million by just 2035. As it grows in importance and size, the future of Medicare will be dominated by two competing pressures.

First, Medicare …

Section 1115 Waivers: Innovation Through Experimentation, Or Stagnation Through Routine?, Nicole Johnson

Emory Law Journal

The Medicaid program operates as a federal-state partnership, in which the states agree to meet certain federally mandated requirements in exchange for federal matching funds for program expenditures. These federal matching funds can be anywhere from 50–90% of health care expenses incurred through state Medicaid programs. As such, states have a substantial interest in continuing this partnership and ensuring that their state plans comply with federal requirements. There is a way, though, in which states can gain more freedom in building their individual state plans. Through section 1115 waivers, states can ask the Centers for Medicare and Medicaid Services (“CMS”) …

False Claims: The Coordinated Exploitation Of The United States Government By The Healthcare Industry, Grady Mcmichen

Journal of Law and Health

The False Claims Act (FCA) has a long-standing history of protecting the United States government from being defrauded by merchants and other parties submitting claims for repayment. Affording Americans who have enrolled in Medicaid and Medicare expansion plans the same protection afforded to the federal government will allow for action to be brought to prevent large hospital networks from engaging in price-fixing behaviors. Implementing this change will have the effect of reducing healthcare prices for all Americans.

Applying the False Claims Act at the price-fixing level will have the largest affect; however, it is still important to iron out procedures …

From Healthcare To Hiring: Impacts Of Social And Public Policy On Disabled Veterans In The United States, Benjamin Michael Stoflet

Journal of Law and Health

Part I of this paper considers the historical foundations, motivations, and evolution of veterans’ disability and employment legislation in the United States. Utilizing disability and employment as its framework, Part II then defines, describes, and critiques contemporary policies for disabled veterans in the areas of federal employment protections and uses of Alternative Dispute Resolution (ADR) within the VA’s disability decision review process. Part III discusses the roles played by disabled veterans and the federal government in policy reform, finding that both sides act as catalysts and barriers to legislative change. This paper concludes in Part IV, recommending legislation that integrates …

An Attempt To Bring Modern Workplace Realities To The Social Security Disability Adjudication System, Robert E. Rains

Dickinson Law Review (2017-Present)

No abstract provided.

J Mich Dent Assoc December 2021

The Journal of the Michigan Dental Association

Every month, The Journal of the Michigan Dental Association brings news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. No publication reaches more Michigan dentists!

In this issue, the reader will find the following original content:

• Two cover stories presenting perspectives from both ends of the practice life continuum: “Starting Your Practice Life” and “Preparing for Retirement”.
• A feature article, “What Happened in Vegas Became ADA Policy”.
• A feature article, “An Oversight Corrected: 2020 MDA Life Members Recognized”.
• The 2021 Author/Title Index to the Journal of the Michigan Dental Association. …

“Waiving” Goodbye To Medicaid As We Know It: Modern State Attempts To Transform Medicaid Programs Through Section 1115 Waivers, Chandler Gray

Washington and Lee Law Review Online

This Note explores recent state efforts to reshape their respective Medicaid programs through Section 1115 waivers. Specifically, this Note looks at states that wish to convert their Medicaid program to a block grant through Section 1115 waivers. Examining the lawfulness of these waivers requires analyzing the language and application of both the Medicaid Act and the Administrative Procedure Act. This Note argues that any use of Section 1115 waivers to implement a block grant program would be a violation of the Medicaid Act and thus unlawful. Further, federal approval of such programs would be deemed arbitrary and capricious. To justify …

Family Rehabilitation, Inc. V. Azar: Caring For The Caretakers - A Path For Providers Trapped In The Medicare Appeals Backlog, Matthew Morris

Journal of Health Care Law and Policy

No abstract provided.

Contracting For Healthcare: Price Terms In Hospital Admission Agreements, George A. Nation Iii

Dickinson Law Review (2017-Present)

This article discusses the application of contract law principles to the relationship between hospitals and patients to determine how much patients owe for the health care they receive. For patients who are covered by in-network health insurance the exact nature of the contract created with the hospital usually is not relevant to the patient’s financial obligation because the patient’s contract with the hospital is superseded by the contract between the patient’s health insurer and the hospital. Nevertheless, even in-network patients are financially impacted, via increased insurance premiums, by the contract analysis discussed here, and for the increasing number of patients …

Humanizing Work Requirements For Safety Net Programs, Mary Leto Pareja

Pace Law Review

This Article explores the political and policy appeal of work requirements for public benefit programs and concludes that inclusion of such requirements can be a reasonable design choice, but not in their current form. This Article’s proposals attempt to humanize these highly controversial work requirements while acknowledging the equity concerns they are designed to address. Drawing on expansive definitions of “work” found in guidance published by the Centers for Medicare and Medicaid (“CMS”) and in various state waiver applications, this Article proposes that work requirements be approved for Medicaid (as well as other benefit programs) only if they encompass various …

Opting Into Device Regulation In The Face Of Uncertain Patentability, Rebecca S. Eisenberg

Marquette Intellectual Property Law Review

This article examines the intersection of patent law, FDA regulation, and Medicare coverage in a particularly promising field of biomedical innovation: genetic diagnostic testing. First, I will discuss current clinical uses of genetic testing and directions for further research, with a focus on cancer, the field in which genetic testing has had the greatest impact to date. Second, I will turn to patent law and address two recent Supreme Court decisions that called into question the patentability of many of the most important advances in genetic testing. Third, I will step outside patent law to take a broader view of …

The Burden Of A Good Idea: Examining The Impact Of Unfunded Federal Regulatory Mandates On Medicare Participating Hospitals, Rachel J. Suddarth

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Macra And Medicare’S Elusive Quest For Fairness And Value With Physician Payment Policy: Speeding Up The Transition To “Big Med”, Rick Mayes, Soleil Shah

Saint Louis University Journal of Health Law & Policy

This article traces the evolution of Medicare physician payment policy from the program’s beginning to the passage of the 2015 Medicare Access and CHIP Reauthorization Act (MACRA). Based on interviews, primary data sources, and an extensive review of the secondary literature, the authors provide an analysis of: (1) some of the most significant events, trends and factors that led to the Act’s passage, (2) MACRA’s basic design and the primary options it gives to physicians, and (3) the major concerns many physician representatives and health policy experts have about MACRA. As the majority of physicians will likely feel the need …

Countering Pay-For-Performance's Unintended Consequences By Rethinking The Physician's Duty To Disclose, Mariah Dick

Health Matrix: The Journal of Law-Medicine

The article highlights the features of the U.S. Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) and identify those attributes that make it vulnerable to the same types of unintended behaviors that have plagued pay-for-performance models in other industries. Topics discussed include unintended consequences associated with pay-for-performance in non-health care industries; physician disclosure standards; and need of laws for patient-centered care and patient autonomy.

The Medicare Appeals Crisis: Why Mediation Is The Medicine, Michelle Ellis

Pepperdine Dispute Resolution Law Journal

This article will explore how unmeritorious RAC-reversals recently polluted the Medicare appeals process, and how this has led to a crisis for both providers and the United States Department of Health & Human Services (HHS). Furthermore, this article will consider the lack of available remedies and narrow measures taken by HHS, and will instead advocate for mediation as the best means of easing the backlog. While the delays also directly affect Medicare beneficiaries, this article will limit its discussion to the backlog in relation to providers and suppliers.

Healthism, Intersectionality, And Health Insurance: The Compounded Problems Of Healthist Discrimination

Marquette Benefits and Social Welfare Law Review

Healthism can identify situations where a person is subject to a particular form of bigotry based on their individual health status. In health insurance, some forms of healthism are unavoidable due to the very nature of health insurance structures. However, when analyzing health insurance programs, particularly those that are funded through government, it is possible to utilize a healthism framework to, first, recognize and minimize and potentially ameliorate the worst effects of healthism combined with intersectionality. This Essay analyzes these issues as they relate to health insurance, Medicare, and the potential role of the Independent Payment Advisory Board.

When Is Competition Not Competition: The Curious Case Of Medicare Advantage, Robert A. Berenson

Saint Louis University Journal of Health Law & Policy

Policymakers routinely assume that Medicare Advantage plans and the traditional Medicare program compete for beneficiaries. Yet the District of Columbia federal district court blocked the proposed Aetna and Humana merger, finding that for purposes of antitrust analysis Medicare Advantage plans and traditional Medicare are effectively in different product markets. That is, they do not compete. This article reviews the basis for the court decision, which relied to a large extent on information that Medicare beneficiaries select their insurance coverage based on durable preferences either for the Medicare Advantage or the traditional Medicare option.

The article explores whether the apparently durable …

American Hospital Association V. Burwell: Correctly Choosing But Erroneously Applying Judicial Discretion In Mandamus Relief Concerning Agency Noncompliance, Michael L. Labattaglia

Maryland Law Review

No abstract provided.

The Health Impact Fund Proposal: Application In The United States' Era Of Comparative Effectiveness, Katherine Jeanne Racz

Journal of Intellectual Property Law

No abstract provided.

Wage Theft As Public Larceny, Elizabeth J. Kennedy

Brooklyn Law Review

Home care for the elderly and disabled is a rapidly expanding industry in which structural and regulatory factors contribute to worker vulnerability and exploitation. Systemic exclusion from core federal employment and labor laws, as well as many state and local regulations, results in minimal consequences for employers who violate standards. Despite recent movement at the federal level to create a “new mindset” of rights and regulations, home care workers must be equipped with creative ways to enforce these new rights and to challenge existing gaps in enforcement. With the understanding that two-thirds of the home care industry is financed by …

Reforming Healthcare Reform, Jacqueline Fox

University of Richmond Law Review

No abstract provided.

Spending Medicare’S Dollars Wisely: Taking Aim At Hospitals’ Cultures Of Overtreatment, Jessica Mantel

University of Michigan Journal of Law Reform

With Medicare’s rising costs threatening the country’s fiscal health, policymakers have focused their attention on a primary cause of Medicare’s high price tag—the overtreatment of patients. Guided by professional norms that demand they do “everything possible” for their patients, physicians frequently order additional diagnostic tests, perform more procedures, utilize costly technologies, and provide more inpatient care. Much of this care, however, does not improve Medicare patients’ health, but only increases Medicare spending. Reducing the overtreatment of patients requires aligning physicians’ interests with the government’s goal of spending Medicare’s dollars wisely. Toward that end, recent Medicare payment reforms establish a range …

Diagnosed With Time Is Money: Arbitrary Medicare Provisions Differentiating Observation Services From Inpatient Admissions Violate Beneficiaries’ Due Process Rights, Stephanie Masaba

William & Mary Bill of Rights Journal

No abstract provided.

Cgmp Violations Should Not Be Used As A Basis For Fca Actions Absent Fraud, Kyle Faget

Seattle University Law Review

Since Congress amended the False Claims Act (FCA) in 1986, the statute has evolved into a seemingly boundless weapon for enforcing other statutes and regulations applicable to every industry that accepts any form of government funding. Use of the FCA by the Department of Justice (DOJ) and by private citizens bringing actions on behalf of the U.S. government to enforce other statutes and regulations is particularly evident in the field of health care. The FCA has been utilized in actions where the allegations include off-label promotion of drugs, kickbacks, and violations of current good manufacturing practices (cGMPs) by linking the …

I Need A Doctor: A Critique Of Medicare Financing Of Graduate Medical Education, Stacey A. Tovino

Washington and Lee Law Review

In its broadest sense, this Article examines the complex relationship between population booms, doctor shortages, and United States government financing of graduate medical education (GME). More specifically, this Article argues that current rules governing the calculation of Medicare payments to teaching hospitals for the costs of GME are based on cost, population, and other data that are no longer relevant. As applied, these formulas discriminate in favor of the nation’s oldest teaching hospitals, located in New England and the Middle Atlantic, and against current and future teaching hospitals located in growing population centers, especially regions in the South and West. …

Response To: "Pay-To-Play: The Impact Of Group Purchasing Organizations On Drug Shortages", Curtis Rooney

American University Business Law Review

No abstract provided.

Observing Observational Status -- Auditors And Inequities

Marquette Elder's Advisor

No abstract provided.

If A Right To Health Care Is Argued In The Supreme Court, Does Anybody Hear It?, W. David Koeninger

Indiana Journal of Law and Social Equality

No abstract provided.

Advocacy In Health Proceedings In New York State, Kia C. Franklin

Touro Law Review

Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize …