Abrams Fensterman's Blog

An armed robbery is giving the Supreme Court the opportunity to blaze new legal ground in the world of electronic evidence. Timothy Carpenter was convicted for violent crimes committed in Ohio and Michigan. He was sentenced to 116 years in prison. Needless to say, he appealed the conviction. Although law enforcement authorities did not have a search warrant, they collected 127 days of cell site location information revealing his locations, movements, and associations. This geolocation metadata was stored on Carpenter's cell phone and was used as evidence to convict Mr. Carpenter.

Last year -- Apple battled in court with the FBI in the aftermath of the massacre in San Bernardino, California. The FBI obtained a court order in February 2016 directing Apple to furnish an encryption key so that law enforcement could access the iPhone of the killer. The court case raged in federal court until the FBI purchased a software tool from an Israeli company that broke the iPhone’s encryption security. The court case became moot because the FBI successfully hacked the iPhone without Apple’s assistance. For further background, my presentation about this important privacy and national security issue in 2016 about the case can be seen here and my slides can be found here.

Equifax has finally informed the public about the source of the dramatic data breach that occurred in July 2017 and was disclosed earlier this week. As is so often the case, a weak leak in the chain of information transmission caused this disclosure of confidential personally-identifiable consumer financial information.

Electronic healthcare security systems were put to the test in 2016, as record numbers of hospitals, facilities and physician practices fell victim to ransomware attacks. The increasing number of ransomware attacks on providers is particularly troublesome because hackers can essentially lock out users from their EHR systems. Once a system is infected, providers feel compelled to pay the ransom rather than sustaining an interruption to patient care. For these reasons, providers should learn about the risks of ransomware and develop strategies to prevent and manage such malicious cyber-attacks.

In reflection on my year during this holiday season, I am grateful for the ability to represent some of the most talented and hard-working physicians in the country. However, I cannot help but feel compassion for some of the providers who face harsh and seemingly unjust consequences for minor mistakes. A perfect example is the physician whose Medicare enrollment status is revoked or voided by its regional contractor.

Physicians, among millions of other concerned Americans, are anxious to see how they will be affected by President-elect Donald Trump's cabinet appointments and policy choices. The transfer of power is particularly nerve-racking in the healthcare industry, given that Trump has been inconsistent with his views on the Affordable Care Act. What can physicians expect during the next four years under President Trump (in addition to the lavish gold "TRUMP" insignia at their local hospital)?

Adopting an effective corporate compliance program is in essence preventive care for the physician practice. Like obesity and diabetes, fraud, waste and abuse is an epidemic in the American healthcare industry, which when left untreated will result in costly consequences. The current accepted "treatment" for fraud, waste and abuse is civil and criminal enforcement action, which punishes providers and others who cause unnecessary costs to the healthcare system. But is punishment the best way to treat and deter undesired conduct? What if there was a way to treat fraud, waste and abuse like there is for a patient at risk for obesity and diabetes?

Imagine a world where there were no physician self-referral laws. Would physicians change their current ownership and compensation arrangements? Would fraud and abuse in healthcare rise? Would administrative burdens and costs decrease, allowing for an increase in compensation and decrease in healthcare costs? In recent hearings conducted by the Senate Finance Committee, physicians and other industry stakeholders sought not just to revamp the Stark Law, but to fully repeal it.

In the age of digital information, people exceedingly rely on review websites, such as Yelp, to help find a nail salon, restaurant, and even a physician. A negative review can lower a practitioner's "rating" on such review websites and thereby potentially steer away prospective new patients. So how can a physician counter a negative review in a practical and effective manner?

The year is 2016 and, unlike 10-20 years ago, it is becoming more commonplace for patients to seek and receive a "recommendation" for medicinal marijuana at the doctor's office. Currently, over 24 states have implemented a legalized medical marijuana program, allowing doctors to "recommend" medical marijuana to patients who may benefit from its therapeutic effects.

Burden of proof is key in every legal proceeding. The attorney needs to know who has the burden of proof and what is the burden of proof. In a criminal proceeding, for example, the state has the burden of proving that the defendant is guilty beyond a reasonable doubt. So what is the burden of proof at a Medicaid Managed Care Fair Hearing, and who has to meet that burden of proof?

What is the easiest way to win a Fair Hearing? Avoid having the hearing heard in the first place. While this may sound easier said than done, a knowledgeable attorney can actually get many Fair Hearings dismissed on procedural grounds.

Whether you’re a managed care plan or a nursing home provider, collecting a patient’s Net Available Monthly Income ("NAMI") debt or excess income ("spend-down") can be a constant struggle. You are plagued with questions. Where are those income checks going? Who is accessing them? How are they being spent? What steps can I take to have the checks applied to the patient’s cost of care?

On July 5, 2014, New York Governor Andrew Cuomo signed New York’s Medical Marijuana bill into law, making New York the 23^rd State to legalize the medical use of marijuana. New York’s law, commonly referred to as the Compassionate Care Act, is described by commentators as one of the safest and most closely regulated medical marijuana programs in the United States. The Compassionate Care Act sets forth comprehensive guidelines for the prescription, cultivation, consumption and dispensing of medical marijuana. These guidelines will be supplemented by regulations promulgated by the New York State Department of Health (“DOH”). Such regulations are expected to be finalized within 18 months from the enactment of the Compassionate Care Act.

General Overview. The current marketplace has shown an emerging trend whereby small physician practices can no longer sustain their profits unless they are willing to take advantage of economic efficiencies. With the implementation of more regulations and the decline in reimbursement rates, two popular ways for physicians to maintain their income level are to: (1) “sell” their practice to a hospital and become employee; or (2) merge with other physician practices and create a larger group practice (sometimes referred to as “Mega-Groups” or “Super Groups”). Each of these solutions has its benefits, but the main difference between them is autonomy. By avoiding the sale of a practice to a hospital, physicians are able to remain their own boss. Furthermore, the physicians are able to grow their practice and increase revenue. However, with a sale to a hospital, each physician is limited to a salary which does not increase based on the volume or value of services performed. In addition, physicians can add withdrawal or buy-out provisions to the Mega-Group organizational documents which allow the physicians to receive a payment when they desire to retire from the practice of medicine.

M&A Activity in the Health Services space is a hot area for the buying, selling and investment in Healthcare Providers by competing businesses, investors and private equity groups. Healthcare Providers, such as hospitals, managed care facilities, post-acute care facilities, physician practices, nursing homes and ambulatory centers, are motivated in selling their Health Services Businesses for various reasons, including:

The Supreme Court decision in United States v. Windsor struck down the Federal Defense of Marriage Act (“DOMA”), holding that the controversial statute impressively “writes inequality into the entire United States Code.” The historical decision has had an infinite ripple-effect into various aspects of state and Federal law, including the Federal physician self-referral law, commonly referred to as the “Stark Law.”