May

To maintain a physician's ability to practice medicine and provider status with public and commercial insurance networks after criminal charges, attorneys should develop a thorough plan for addressing the anticipated concerns of numerous entities. One should anticipate disciplinary "piling on" by other healthcare entities and insurers.

Physician employment at hospitals remains on a healthy growth path. Hospitals employed some 211,500 physicians in 2010, a 34 percent increase since 2000, according to the latest annual survey conducted by Merritt Hawkins.

In the December 2012 United States v. Caronia decision, the Second Circuit held that the prohibition and criminalization of certain types of off-label promotional speech by pharmaceutical companies and their representatives violates the First Amendment. In light of the significant settlements achieved by the federal government, third-party payors and consumer plaintiffs based on off-label promotional speech claims, many have wondered whether such claims have a viable future.

The pharmacy benefit manager (PBM) industry is little known and less understood. But PBMs have a significant impact on public health and patient care, both through their ability to determine drug prices for government payers, private third-party payers, and patients, and through their ability to determine which drugs are available and affordable via formularies. Health law practitioners should recognize that PBMs exist and need to understand what PBMs' role is in the industry.

The federal False Claims Act, 31 U.S.C. §§ 3729–3733, is a primary enforcement tool used by the U.S. Department of Justice (DOJ) to prevent fraud on the government relating to federal programs. Increasingly, the DOJ is steering its criminal enforcement program toward individuals and stepping up health care fraud investigations.

The healthcare industry alone accounted for over $9.5 billion in recoveries by the U.S. Department of Justice from Jan. 2009–Sept. 2012. Although the False Claims Act dates to the Civil War, the explosion of these types of cases is a more recent phenomenon—in FY 2012, the DOJ recovered nearly $5 billion; however, very specific pleading standards must be met, or the case is subject to dismissal on motion of the defendant.

Under the Federal Officer Removal statute, set forth in 28 U.S.C§ 1442(a)(1), a federal court has jurisdiction over a civil action that is directed at "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office."

One Year of Practice Under the Federal Courts Jurisdiction and Venue Clarification Act of 2011