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Loyola University Chicago

Beazley Institute for Health Law and Policy

School of Law

Volume 6 (1997)

Annals of Health Law
The Health Policy and Law Review of Loyola University Chicago School of Law

Volume 6 (1997)

Editor-In-Chief:
 
John D. Blum, M.H.S., J.D. 

Executive Editor:
Marilyn Hanzal, J.D. 

Senior Editor:
Thomas Bartrum, J.D. 

Editorial Board:
John D. Blum
L. Edward Bryant
Marilyn Hanzal
S. Craig Holden
Barbara W. Mayers
Jeff Miles
J.A. (Tony) Patterson, Jr.
Jack A. Rovner
Lawrence E. Singer
Thomas G. Stayton
Jeffery M. Teske
Stephen J. Weiser 

Senior Article Editors:
Brian E. Fliflet
Jean Hellman, LL.M. 

Article Editors:
Cythia B. Bass. J.D.
Deanne Clarke
Nidhi Desai
Elizabeth Donohue
Heidi Dugar
Elizabeth Lynn Gordon
Patricia Hoffman
Linas J. Grikis, J.D.
Jon Kweller, J.D.
Rise Terney
Evelyn Torres
Julie M. Vlaming


Articles:

Interpreting the 1996 Federal Antitrust Guidelines for Physician Joint Venture Networks
Author: Edward Hirshfeld

The Statements of Antitrust Enforcement Policy in Health Care, issued by the FTC and the DOJ, dramatically change how the agencies evaluate physician joint venture networks.  This article analyzes the Statements, providing useful guidance to the health lawyer.

The Brave New World of Health Care Compliance Programs 
Author: Thomas E. Bartrum & L. Edward Bryant, Jr.

The need for corporate compliance programs in health care delivery systems is ever increasing.  This article identifies the key items a good program should contain, and addresses issues raised by the existence of a program as well as its implementation.

Health Care Fraud and Abuse:  New Weapons, New Penalties, and New Fears for Providers Created by the Health Insurance Portability and Accountability Act of 1996
Author: Colleen M. Faddick

The Health Insurance Portability and Accountability Act of 1996 may well be the most significant increase ever in the federal government's health care fraud and abuse enforcement authority.  This new authority coupled with increased scrutiny of the health care industry generally creates a compelling incentive for health care facilities to develop corporate compliance programs.

Mixing Oil and Water:  The Government's Mistaken Use of the Medicare Anti-Kickback Statute in False Claims Act Prosecutions
Author: Robert Salcido

In 1996, billing integrity generated a great deal of debate and litigation in the health care arena.  Significantly, the federal government views a violation of the Anti-Kickback Act as a basis for False Claims Act action.  While federal courts are split on the issue, the author strongly contends that using the False Claims Act to do what the Anti-Kickback Act was intended to do is inappropriate, given Congress' intention in enacting each legislation .

The Government's Use of the Civil False Claims Act to Enforce Standards of Quality of Care:  Ingenuity or the Heavy Hand of the 800 lb Gorilla 
Author: Michael M. Mustokoff & Jody A. Werner & Michael S. Yecies

Fraud and abuse issues abound in health care.  A new, rather unique assertion is that submitting a bill for health care that is inadequate constitutes a violation of the Civil False Claims Act.  The authors contend that there are more effective and appropriate ways to address poor quality of care, and that using the False Claims Act in this matter is like fitting a square peg in a round hole.

The Role of the Federal Government in Ensuring Quality of Care in Long-Term Care Facilities
Author: David R. Hoffman

Quality of care is a concept most important to our vulnerable populations, including the elderly.  When the government pays for nursing care for the elderly, it expects that it is paying for quality care.  When the quality is substandard, as it was with the Tucker House II, the government can use the False Claims Act to recover monies paid.

Directors' Duty to Obtain a Fair Price on the Conversion of Nonprofit Hospitals
Author: Eric S. Tower

Boards of Directors of tax-exempt hospitals are increasingly struggling with whether to convert their facilities to for-profit status.  Other than the traditional duties of loyalty and fair dealing imposed upon directors, there is currently little guidance to assure that boards obtain a fair price for the hospital in such conversions.  The author provides recommendations to assure proper valuation.

Post-Decision Diagnosis: Medical Device Preemption Alive and Mostly Well After Medtronic, Inc. v. Lohr
Author: 
Scott W. Sayler & Steven M. Thomas

In Medtronic, Inc. v. Lohr, the United States Supreme Court, in a five-to-four split, held that the Medical Device Amendments of 1976 did not preempt state tort claims against a pacemaker manufacturer.  A careful reading of the factually specific holding of this case suggests that manufacturers of medical devices distributed pursuant to pre-market approval requirement and investigational device exemption can still successfully raise preemption as a defense to state common law tort claims.

To Resuscitate or Not...In the Operating Room: The Need for Hospital Policies for Surgeons Regarding DNR Orders 
Author: Vassyl A. Lonchyna

As more Americans have become aware of end-of-life planning, health care professionals are faced with more "Do Not Resuscitate" orders.  A patient with a terminal condition who has signed such an order may enter the operating room for a surgical procedure; few hospitals have developed protocols to assist the medical staff.  In most hospitals, it is unclear whether the medical staff should honor the "DNR" or follow the traditional resuscitation protocol of the operating room. 

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