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			Wednesday, January 7, 2009 News Clipping Archives Beilenson refocuses effort to boost enrollment for Healthy Howard Plan (Baltimore Sun) 'Momentum' Seen for Smoke-Free Restaurants (Washington Post) Wegmans joins Giant in offering free antibiotics (Daily Record) Hospital-employed physicians: Learn the lessons of Sulzbach (Daily Record) Beilenson refocuses effort to boost enrollment for Healthy Howard Plan By Larry Carson Baltimore Sun Tuesday, January 6, 2009 Stung by criticism from a County Council member that Howard County's new health access plan has enrolled too few residents, officials are refocusing their efforts to find more people who qualify. Dr. Peter L. Beilenson, the county health officer, said yesterday that to ensure continued political support for the Healthy Howard Plan, he is seeking residents who do not have health insurance and who do not qualify for any existing program. The program seeks to provide access to health care to each of the estimated 20,000 limited-income residents who have no insurance. But in October, the first month of enrollment, all but 66 of the 1,100 who applied would have qualified for existing programs. That drew criticism from County Councilman Greg Fox, who suggested that Beilenson did not do enough research before launching the program, which is funded in part with $500,000 of county money. Beilenson said he wants to forestall such criticism in a time of widespread economic problems. "I don't want to be concerned about people questioning using $500,000," he said. Beilenson said he is seeking community college students, residents of subsidized housing, contractual employees and others who earn incomes that are too high for existing programs but too low to afford insurance. Healthy Howard provides access to doctors and specialists for a nominal monthly fee, but it is not an insurance program. The goal was to enroll up to 2,200 people the first year, though Beilenson said 1,500 would be "defensible." "The sad thing about the quotes raised by Councilman Fox is that we're solely focusing on Healthy Howard for the next two months and not on other programs," Beilenson said. Fox also criticized Beilenson's latest move. "The reality is, if there were that many people who need this program, they should have been lined up. He's got 66," Fox said. Copyright 2008 Baltimore Sun. 'Momentum' Seen for Smoke-Free Restaurants By Michael Laris Washington Post Wednesday, January 7, 2009; B02 Virginia Gov. Timothy M. Kaine (D) yesterday renewed his bid to ban smoking at restaurants in the commonwealth, telling legislators and others gathered at an Arlington County restaurant that much has changed since the proposal was torpedoed last year. Standing near a wood-burning pizza stove at the Liberty Tavern, Kaine said that scientific evidence, a change in General Assembly procedure and an expected barrage of proposals for restricting smoking, including some from Republicans, could make passage of some limits possible. "The momentum for this bill is really moving the right way," Kaine said. Tavern co-owner Stephen Fedorchak, standing before platters of Maryland and Vermont goat cheese, said his restaurant's decision to be smoke-free has been good for business. "We wanted the restaurant to smell like good food cooking," Fedorchak said. But opponents of the bill, submitted this week by Del. David L. Englin (D-Alexandria), said restaurants should not be forced to prohibit smoking. "Sixty-seven percent of restaurants have gone smoke-free on their own. Obviously, the market is telling restaurants to go smoke-free," said Megan Svajda, director of government relations for the Virginia Hospitality and Travel Association, which represents restaurants, hotels and resorts. "There's no need for a government mandate." Kaine recited the same public health statistics that failed to sway a House of Delegates committee last year, among them that 1,700 Virginians die each year because of secondhand smoke and that restaurant workers have a higher risk of dying of lung cancer in part because of customers who smoke. It was the fourth consecutive year that a smoking ban had been defeated. But Kaine said his discussions with legislators from both parties have given him hope. House leaders, for instance, say they are ending the practice of holding unrecorded committee votes. That arrangement helped make last year's defeat in a subcommittee of the House General Laws Committee easier, he said. "They didn't want to be accountable for a yes-no vote," Kaine said. "We ought to be on record on everything we do." The governor also said he expects the bill he supports to be joined by more-extensive proposed bans of smoking in public places and less-restrictive efforts submitted by Republicans, making some action possible. But Del. David B. Albo (R-Fairfax), who voted against the restaurant smoking ban last year, said Kaine does not appear to be seeking compromise. "They had a big election win and they want to run around shoving their bills down people's throats without compromise," Albo said. "It's just purely political." Albo said he plans to submit a narrower bill. It would ban smoking in some restaurants with key exceptions. It would exclude private clubs and restaurants that have designated smoking areas set apart from nonsmoking areas. It would also exclude cigar bars and establishments restricted to customers 18 and older, Albo said. Del. Robert H. Brink (D-Arlington) plans to submit a bill that would allow a ban in Northern Virginia restaurants. Given the bans in Maryland and the District, failing to do so would make Northern Virginia the region's "ashtray," he said. Copyright 2008 Washington Post. Wegmans joins Giant in offering free antibiotics By Danielle Ulman Daily Record Wednesday, January 6, 2009 Wegmans joined a small group of grocery stores Tuesday offering shoppers free generic antibiotics prescribed through the winter season, spicing up the battle between grocers to grow their customer bases. The Rochester, N.Y.-based Wegmans Food Markets Inc. will fill customers’ prescriptions for nine types of drugs when they use a Shoppers Club card through March 31. The drugs include Amoxicillin, Penicillin and Tetracycline. Despite making the announcement one week after Giant Food LLC said it would offer free antibiotics from Jan. 2 to March 21, Wegmans’ spokeswoman Jo Natale said the program has been in the works for weeks and called the timing coincidental. “We’ve been talking about doing this off and on for the last year, but we came to the decision to offer the program at the start of the year,” she said. “It was not a direct reaction to the Giant’s program.” In November, Wegmans began cutting prices on hundreds of items, and Natale said the reaction from employees and customers was so positive that they sought to find other ways to help people. Wegmans has 72 stores in the region, but only five are located in Virginia and Maryland, including one in Hunt Valley. Wegmans has expressed interest in opening a Columbia store, but plans have been stalled by opposition from a food workers union. Natale said she could not comment on its status. Giant spokesman Jamie Miller said the company does not comment on the actions of other supermarkets, and said the free antibiotics program is just one of many ways the store is trying to make things more affordable for customers. The Landover-based grocer also offers 90-day supplies of more than 350 generic prescription drugs for $9.99. “We feel that we have come up with a good plan to help consumers during this tough economic time,” he said. “We knew that other stores would likely follow our lead.” Giant was not the first supermarket to offer free antibiotics; Publix in Florida, Texas-based United Supermarkets and several others offer permanent free antibiotic programs. The move seems less like a competition between Wegmans, Giant and its sister store Stop & Shop, which is also offering the promotion, and more like a fight to keep customers from seeking out inexpensive drugs at Wal-Mart and Target, said Steve Roath, a consultant who advises food stores for Encore Associates in California. “These are programs apparently that stem back to the Wal-Mart offer of 300 prescriptions at a low price,” he said. “The response was to look within the categories that Wal-Mart was able to offer at a low price and see what areas they could do the same.” Both Target and Wal-Mart said they would not try to compete with Wegmans and Giant, but would continue filling prescriptions for hundreds of generic drugs for $4 each. Wegmans would not say how much it estimated the program would cost, but Natale said the company expected the program to save customers $1 million. She said it will cost the store more than that because insurance companies will not be paying for a portion of the drugs. “I don’t think this could possibly backfire on them,” Roath said. “It may not be as effective as they might expect or might hope because changing pharmacies in order to get a prescription filled of any kind is not done often for money reasons.” Still, Wegmans could retain customers who might be going to other stores for some prescriptions, he said. “Wegmans is deeply rooted in drug sales,” Roath said. “They have the largest number prescriptions filled per store per day in that industry.” Copyright 2008 Daily Record. Hospital-employed physicians: Learn the lessons of Sulzbach By Barry F. Rosen Daily Record Wednesday, January 7, 2009 In September 2007, the federal government filed a false claims complaint against the former Corporate Integrity Program Director of Tenet Healthcare, Christi Sulzbach. Sulzbach, an attorney, allegedly had knowledge of, and failed to stop, Tenet from paying employed physicians compensation based on referrals for hospital-based ancillary lab services. According to the complaint, Sulzbach was aware that this compensation probably violated the federal Stark law. As part of her job, Sulzbach had a duty to investigate, correct and report such alleged violations under a Corporate Integrity Agreement (CIA) between the government and Tenet’s predecessor. According to the government, her failure to do so violated the federal False Claims Act. The facts The government alleges that Sulzbach knew that the employed physicians in question received substantial pay raises - nearly 90 percent in some cases - compared to the physicians’ reported wages prior to their hospital employment. The hospital also allegedly calculated the value of the physicians’ expected ancillary laboratory referrals when setting the physicians’ compensation. The complaint also alleges that the physicians’ referrals to the hospital’s laboratory increased substantially after they became employees of the hospital. Further, the hospital’s pro-formas allegedly showed the hospital breaking even or taking a loss on the enterprise. The complaint also states that, after the arrangement was brought to Sulzbach’s attention, she received advice from outside counsel that the physicians’ compensation violated the Stark law. Further, under the CIA, Tenet was required to make annual compliance reports to the government. Sulzbach was required to verify that Tenet was in compliance with all federal program requirements, including the Stark law and the CIA. In 1997, and again in 1998, Sulzbach signed sworn declarations that, to the best of her knowledge and belief, Tenet was in material compliance with all federal program legal requirements, including the terms of the CIA, which terms included disclosures to the government of alleged misconduct and investigations of that misconduct. As a result of these two declarations, the complaint seeks to have Sulzbach pay three times the damages incurred by the government, as well as fines of up to $700 million ($10,000 for each of approximately 70,000 claims for payment that Tenet submitted to Medicare). The three-legged stool In general, the Stark law prohibits hospital-employed physicians from referring patients for hospital-provided services, unless the physician’s employment agreement satisfies, among other things, a “three-legged stool” compensation test. The first leg of the stool is that the physician cannot receive more than fair market value for the physician’s services. The second leg, and one of the legs addressed in Sulzbach, is that the physician’s compensation must be commercially reasonable absent the referrals that will arise between the physician and the hospital. A hospital might be paying a doctor fair market value according to some national standard, but a lack of commercial reasonableness could still be alleged, because the collections from the doctor’s direct services do not cover the doctor’s compensation and his or her fair share of overhead. The third leg, and the other leg addressed in Sulzbach, is that a hospital-employed physician’s compensation may not be “determined” in a manner that takes referrals of designated health services (DHS), including ancillary services and other hospital services, into account. Most hospitals do not pay bonuses to employed doctors for DHS referrals, but a hospital may, as alleged in Sulzbach, be aware of expected DHS referrals when the hospital sets an employed physician’s otherwise fixed compensation. Caveats No judge has yet concluded that running an employed physician practice at a loss is commercially unreasonable. In such a circumstance, a hospital might defend the commercial reasonableness of the compensation by showing, among other things, that part of the doctor’s compensation is attributable to the doctor’s treatment of the uninsured or underinsured, on-call duties, administrative duties and/or teaching. Similarly, no judge has yet concluded that including expected DHS in a hospital pro forma is evidence that an employed physician’s compensation has been “determined” in a manner that takes DHS into account. Further, the existence of the Tenet Corporate Integrity Program, and outside counsel’s criticism of this particular transaction, are facts that may not exist in other situations. Warning Notwithstanding these nuances, the allegations in Sulzbach are still chilling. Quite simply, the complaint is a warning. Hospital administrators and hospital counsel need to remember that hospital-employed physician compensation is a particularly risky area under the Stark law. The complaint also reminds health care administrators of the significant personal liability that arises under the False Claims Act by reason of an administrator’s certification of documents submitted to the Centers for Medicare and Medicaid Services. Barry F. Rosen is the chairman and CEO of the law firm of Gordon, Feinblatt, Rothman, Hoffberger & Hollander LLC, and he can be reached at 410-576-4224 or brosen@gfrlaw.com. Christopher P. Dean is an associate in Gordon, Feinblatt’s Health Care Practice Group, and he can be reached at 410-576-4221 or cdean@gfrlaw.com. Copyright 2008 Daily Record. BACK TO TOP


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