Archive for October, 2011

Advice from Antiquity

“Life is like riding a bicycle. To keep your balance you must keep moving.”  – Albert Einstein

This article first appeared on the PBS affiliated Website This Emotional Life.

Every so often I stop to reflect upon the seemingly random series of events that have led my life to its current point. In times like these my mind rarely gravitates toward any single individuals who left lasting impressions, positive or negative, but instead remains fixed on the patterns that have emerged over time.  Make no mistake, I still search for a seemingly insignificant or banal event from my past that might offer some magical context to help define the person I have become, especially in light of my newfound fatherhood.  And yet, while I am not holding out for such an epiphany any time soon for myself, such a revelation could do wonders for my son as he crawls faster and faster toward the conclusion of his first year.

At the age of eleven, I read my first Greek myth, and I was hooked. Eleven years later, I graduated from college with a major in classical studies, a discipline I have described as familiarization with an abundance of Greek myths experienced in a written rather than spoken format, in a language that dates back seven to ten thousand years.  From this historical depository of dactylic hexameter and Socratic dialogue, a few key tenets have remained permanently etched in my brain, and it is not uncommon for me to draw upon these scraps of wisdom on any given day. While often overshadowed by the technological advances that largely define our fast-paced modern society, I continually find that those bits of knowledge I learned twenty years ago are more than enough to help me navigate through even the most baffling of days.

Victory comes to men in turns.”

This famous quote from a traditional English translation of Homer’s Iliad is a source of comfort and hope in troubled times as well as a gentle reminder for us all to strive for humility at any stage. Continue reading →

Health Care Reform Sets the Standard Under the Federal Anti-Kickback Statute, But How Much Longer Will It Apply?

17 No. 4 Westlaw Journal Health Care Fraud 1

October 12, 2011 – Commentary

Craig B. Garner, Esq.

Copyright © 2011 Thomson Reuters – Reprinted with Permission

Introduction

Under its aegis, the 2010 Patient Protection and Affordable Care Act, more commonly referred to as Health Care Reform, Pub. L. No. 111-148, clarified the criminal-intent requirement under the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b.

Before PPACA, federal courts applied different standards of intent, both general and specific, in determining the existence of violations under the AKS. Section 6402(f)(2) of PPACA amends the AKS by stating, in part:

With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.

Like it or not, congressional design is clear, and this general-intent threshold now serves as the national standard for the AKS after PPACA. While constitutional scholars may take aim at this seemingly benign amendment when they eventually tire of health care reform’s individual insurance mandate, health care and criminal law practitioners are better served by understanding the historical landscape leading up to Section 6402(f)(2). By tracing the evolution of the AKS, as well as the companion False Claims Act, 31 U.S.C. § 3729, and the Ethics in Patient Referrals Act, 42 U.S.C. § 1395nn (more commonly referred to as Stark I and Stark II), practitioners may have a stronger perspective with which to offer their clients advice within the rapidly changing climate of health care reform, rather than relying upon cautionary missives that speak to this watered-down standard of scienter.

Some legal history

Actus non facit reum nisi mens sit rea. (“The act is not culpable unless the mind is guilty.”) [FN1]

With a few exceptions, historical discussion of criminal law has tended to combine bad actions with a previously existing desire to effectuate the same. Most often in the context of ordinary, visible crimes such as murder, battery, robbery, arson, etc., a common condition precedent to conviction for such offenses was specific intent. [FN2] This mental element exists as a subset within two separate and distinct types of crimes: those prohibited by statutory authority (malum prohibitum, such as parking regulations, copyright laws and the tax code), and those plainly in violation of society’s standards (malum in se, such as rape and murder). Continue reading →

Facebook and EHRs: A Very Fine Line Just Got Even Finer

This article first appeared on iHealthBeat.org.

Americans love their privacy. And yet, as the ever-increasing trend of social networking illustrates, they also love to share the facts of their lives. As a result, defining privacy can be tricky in this modern age and often depends on the venue in which information is presented and the form it takes.

In today’s world of electronic health records, straddling the fence between harmless information and sensitive data is no longer such an easy task, and the repercussions for the slightest transgression can be severe.

On August 22, HHS issued a press release challenging software developers to create new Facebook applications to assist in emergency preparation efforts. If Facebook was a nation, its “population” would be more than double that of the United States. If online minutes for Facebook users were the functional equivalent of “dollars spent,” the social network’s estimated $84 trillion in annual “spending” would top the collective gross national products of all nations across the globe, even if the U.S. or European Union were counted twice.

While Facebook is a great way to stay connected to friends and family, it also can blur the line between privacy and the public domain. With a few quick clicks you may come to learn that Susan is at the coffee shop with Billy, Milton is attending a marketing seminar, or David is recovering nicely from a recent appendectomy at a hospital in Florida.

While Facebook might be given free rein to spread news of David and his recently removed appendix, other mediums must proceed with caution. If someone from David’s hospital was to leak his news, the hospital would face great scrutiny because health care providers are bound by law to obtain in advance David’s express, written authorization to publicly disclose details about his physical well-being. This is true even if said metadata were common knowledge among David’s 268 Facebook friends. Continue reading →

 

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